Exhibit 10.29


 


EXECUTION VERSION




 





 


 


$4,300,000,000


 


SENIOR UNSECURED INTERIM LOAN AGREEMENT


 


Dated as of September 24, 2007


 


as Amended and Restated as of October 24, 2007


 


among


 


FIRST DATA CORPORATION,

as the Borrower,


 


The Several Lenders

from Time to Time Parties Hereto,


 


CITIBANK, N.A.,

as Administrative Agent,


 


CREDIT SUISSE, CAYMAN ISLANDS BRANCH,

as Syndication Agent,


 


and


 


CITIGROUP GLOBAL MARKETS INC.,

CREDIT SUISSE SECURITIES (USA) LLC,

DEUTSCHE BANK SECURITIES INC.,

GOLDMAN SACHS CREDIT PARTNERS L.P.,

HSBC SECURITIES (USA) INC.,

LEHMAN BROTHERS INC. and

MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,

as Joint Lead Arrangers and Bookrunners




 


 





 


 


Cahill Gordon & Reindel LLP


80 Pine Street


New York, New York  10005


 


892265


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 1.

  	
   

  	
  Definitions

  	
  3

  
	
  1.1.

  	
   

  	
  Defined
  Terms

  	
  3

  
	
  1.2.

  	
   

  	
  Other
  Interpretive Provisions

  	
  52

  
	
  1.3.

  	
   

  	
  Accounting
  Terms

  	
  53

  
	
  1.4.

  	
   

  	
  [Reserved]

  	
  53

  
	
  1.5.

  	
   

  	
  References
  to Agreements, Laws, Etc.

  	
  53

  
	
  1.6.

  	
   

  	
  [Reserved]

  	
  53

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 2.

  	
   

  	
  Amount and Terms of Credit

  	
  53

  
	
  2.1.

  	
   

  	
  Commitments

  	
  53

  
	
  2.2.

  	
   

  	
  Maximum
  Number of Borrowings

  	
  54

  
	
  2.3.

  	
   

  	
  Notice of
  Borrowing

  	
  54

  
	
  2.4.

  	
   

  	
  Disbursement
  of Funds

  	
  55

  
	
  2.5.

  	
   

  	
  Repayment
  of Loans; Evidence of Debt

  	
  56

  
	
  2.6.

  	
   

  	
  Conversions
  and Continuations

  	
  56

  
	
  2.7.

  	
   

  	
  Pro Rata
  Borrowings

  	
  57

  
	
  2.8.

  	
   

  	
  Interest

  	
  57

  
	
  2.9.

  	
   

  	
  Interest
  Periods

  	
  59

  
	
  2.10.

  	
   

  	
  Increased
  Costs, Illegality, Etc.

  	
  59

  
	
  2.11.

  	
   

  	
  Compensation

  	
  61

  
	
  2.12.

  	
   

  	
  Change of
  Lending Office

  	
  62

  
	
  2.13.

  	
   

  	
  Notice of
  Certain Costs

  	
  62

  
	
  2.14.

  	
   

  	
  Permanent
  Refinancing

  	
  62

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 3.

  	
   

  	
  [Reserved]

  	
  64

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 4.

  	
   

  	
  Fees; Commitments

  	
  64

  
	
  4.1.

  	
   

  	
  Administrative
  Agent’s Fees

  	
  64

  
	
  4.2.

  	
   

  	
  [Reserved]

  	
  64

  
	
  4.3.

  	
   

  	
  Mandatory
  Termination of Commitments

  	
  64

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 5.

  	
   

  	
  Payments

  	
  65

  
	
  5.1.

  	
   

  	
  Voluntary
  Prepayments

  	
  65

  
	
  5.2.

  	
   

  	
  Mandatory
  Prepayments

  	
  65

  
	
  5.3.

  	
   

  	
  Method
  and Place of Payment

  	
  67

  
	
  5.4.

  	
   

  	
  Net
  Payments

  	
  68

  
	
  5.5.

  	
   

  	
  Computations
  of Interest

  	
  70

  
	
  5.6.

  	
   

  	
  Limit on
  Rate of Interest

  	
  71

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 6.

  	
   

  	
  Conditions Precedent to Initial Borrowing Under Original Senior
  Unsecured Loan Agreement

  	
  71

  
	
  6.1.

  	
   

  	
  Loan
  Documents

  	
  71

  



 


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  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  6.2.

  	
   

  	
  Guarantee

  	
  71

  
	
  6.3.

  	
   

  	
  Legal
  Opinions

  	
  72

  
	
  6.4.

  	
   

  	
  Notice of
  Borrowing

  	
  72

  
	
  6.5.

  	
   

  	
  Equity
  Investments

  	
  72

  
	
  6.6.

  	
   

  	
  Closing
  Certificates

  	
  72

  
	
  6.7.

  	
   

  	
  Authorization
  of Proceedings of Each Loan Party

  	
  72

  
	
  6.8.

  	
   

  	
  Fees

  	
  72

  
	
  6.9.

  	
   

  	
  Representations
  and Warranties

  	
  72

  
	
  6.10.

  	
   

  	
  Solvency
  Certificate

  	
  72

  
	
  6.11.

  	
   

  	
  Merger

  	
  72

  
	
  6.12.

  	
   

  	
  Patriot
  Act

  	
  73

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 7.

  	
   

  	
  Conditions Precedent to Entering This Agreement

  	
  73

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 8.

  	
   

  	
  Representations, Warranties and Agreements

  	
  73

  
	
  8.1.

  	
   

  	
  Corporate
  Status

  	
  73

  
	
  8.2.

  	
   

  	
  Corporate
  Power and Authority

  	
  73

  
	
  8.3.

  	
   

  	
  No
  Violation

  	
  74

  
	
  8.4.

  	
   

  	
  Litigation

  	
  74

  
	
  8.5.

  	
   

  	
  Margin
  Regulations

  	
  74

  
	
  8.6.

  	
   

  	
  Governmental
  Approvals

  	
  74

  
	
  8.7.

  	
   

  	
  Investment
  Company Act

  	
  74

  
	
  8.8.

  	
   

  	
  True and
  Complete Disclosure

  	
  75

  
	
  8.9.

  	
   

  	
  Financial
  Condition; Financial Statements

  	
  75

  
	
  8.10.

  	
   

  	
  Tax
  Matters

  	
  75

  
	
  8.11.

  	
   

  	
  Compliance
  with ERISA

  	
  76

  
	
  8.12.

  	
   

  	
  Subsidiaries

  	
  77

  
	
  8.13.

  	
   

  	
  Intellectual
  Property

  	
  77

  
	
  8.14.

  	
   

  	
  Environmental
  Laws

  	
  77

  
	
  8.15.

  	
   

  	
  Properties

  	
  77

  
	
  8.16.

  	
   

  	
  Solvency

  	
  77

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 9.

  	
   

  	
  Covenants

  	
  77

  
	
  9.1.

  	
   

  	
  Reports
  and Other Information

  	
  77

  
	
  9.2.

  	
   

  	
  Compliance
  Certificate

  	
  79

  
	
  9.3.

  	
   

  	
  Taxes

  	
  79

  
	
  9.4.

  	
   

  	
  Stay,
  Extension and Usury Laws

  	
  79

  
	
  9.5.

  	
   

  	
  Limitation
  on Restricted Payments

  	
  79

  
	
  9.6.

  	
   

  	
  Dividend
  and Other Payment Restrictions Affecting Restricted Subsidiaries

  	
  87

  
	
  9.7.

  	
   

  	
  Limitation
  on Incurrence of Indebtedness and Issuance of Disqualified Stock and
  Preferred Stock

  	
  89

  
	
  9.8.

  	
   

  	
  Asset
  Sales

  	
  96

  
	
  9.9.

  	
   

  	
  Transactions
  with Affiliates

  	
  99

  
	
  9.10.

  	
   

  	
  Liens

  	
  101

  



 


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  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  9.11.

  	
   

  	
  Corporate
  Existence

  	
  102

  
	
  9.12.

  	
   

  	
  Offer to
  Repurchase upon Change of Control

  	
  102

  
	
  9.13.

  	
   

  	
  Limitation
  on Guarantees of Indebtedness by Restricted Subsidiaries

  	
  103

  
	
  9.14.

  	
   

  	
  Merger,
  Consolidation or Sale of All or Substantially All Assets

  	
  104

  
	
  9.15.

  	
   

  	
  Successor
  Corporation Substituted

  	
  106

  
	
  9.16.

  	
   

  	
  [Reserved]

  	
  107

  
	
  9.17.

  	
   

  	
  [Reserved]

  	
  107

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 10.

  	
   

  	
  [Reserved]

  	
  107

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 11.

  	
   

  	
  Defaults and Remedies

  	
  107

  
	
  11.1.

  	
   

  	
  Events of
  Default

  	
  107

  
	
  11.2.

  	
   

  	
  [Reserved]

  	
  109

  
	
  11.3.

  	
   

  	
  [Reserved]

  	
  109

  
	
  11.4.

  	
   

  	
  [Reserved]

  	
  109

  
	
  11.5.

  	
   

  	
  [Reserved]

  	
  109

  
	
  11.6.

  	
   

  	
  [Reserved]

  	
  109

  
	
  11.7.

  	
   

  	
  [Reserved]

  	
  110

  
	
  11.8.

  	
   

  	
  [Reserved]

  	
  110

  
	
  11.9.

  	
   

  	
  [Reserved]

  	
  110

  
	
  11.10.

  	
   

  	
  [Reserved]

  	
  110

  
	
  11.11.

  	
   

  	
  [Reserved]

  	
  110

  
	
  11.12.

  	
   

  	
  [Reserved]

  	
  110

  
	
  11.13.

  	
   

  	
  [Reserved]

  	
  110

  
	
  11.14.

  	
   

  	
  [Reserved]

  	
  110

  
	
  11.15.

  	
   

  	
  [Reserved]

  	
  110

  
	
  11.16.

  	
   

  	
  Remedies
  upon Event of Default, Waivers of Past Defaults

  	
  110

  
	
  11.17.

  	
   

  	
  Application
  of Proceeds

  	
  111

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 12.

  	
   

  	
  The Agents

  	
  111

  
	
  12.1.

  	
   

  	
  Appointment

  	
  111

  
	
  12.2.

  	
   

  	
  Delegation
  of Duties

  	
  112

  
	
  12.3.

  	
   

  	
  Exculpatory
  Provisions

  	
  112

  
	
  12.4.

  	
   

  	
  Reliance
  by Agents

  	
  112

  
	
  12.5.

  	
   

  	
  Notice of
  Default

  	
  113

  
	
  12.6.

  	
   

  	
  Non-Reliance
  on Administrative Agent and Other Lenders

  	
  113

  
	
  12.7.

  	
   

  	
  Indemnification

  	
  114

  
	
  12.8.

  	
   

  	
  Agents in
  Their Individual Capacities

  	
  115

  
	
  12.9.

  	
   

  	
  Successor
  Agents

  	
  115

  
	
  12.10.

  	
   

  	
  Withholding
  Tax

  	
  115

  
	
  12.11.

  	
   

  	
  [Reserved]

  	
  116

  
	
  12.12.

  	
   

  	
  Agents
  under Guarantee

  	
  116

  
	
  12.13.

  	
   

  	
  Right to
  Enforce Guarantee

  	
  116

  



 


iii

















 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 13.

  	
   

  	
  Miscellaneous

  	
  116

  
	
  13.1.

  	
   

  	
  Amendments,
  Waivers and Releases

  	
  116

  
	
  13.2.

  	
   

  	
  Notices

  	
  119

  
	
  13.3.

  	
   

  	
  No Waiver;
  Cumulative Remedies

  	
  119

  
	
  13.4.

  	
   

  	
  Survival
  of Representations and Warranties

  	
  119

  
	
  13.5.

  	
   

  	
  Payment
  of Expenses; Indemnification

  	
  119

  
	
  13.6.

  	
   

  	
  Successors
  and Assigns; Participations and Assignments

  	
  120

  
	
  13.7.

  	
   

  	
  Replacements
  of Lenders Under Certain Circumstances

  	
  125

  
	
  13.8.

  	
   

  	
  Adjustments;
  Set-off

  	
  126

  
	
  13.9.

  	
   

  	
  Counterparts

  	
  126

  
	
  13.10.

  	
   

  	
  Severability

  	
  127

  
	
  13.11.

  	
   

  	
  Integration

  	
  127

  
	
  13.12.

  	
   

  	
  GOVERNING
  LAW

  	
  127

  
	
  13.13.

  	
   

  	
  Submission
  to Jurisdiction; Waivers

  	
  127

  
	
  13.14.

  	
   

  	
  Acknowledgments

  	
  128

  
	
  13.15.

  	
   

  	
  WAIVERS
  OF JURY TRIAL

  	
  129

  
	
  13.16.

  	
   

  	
  Confidentiality

  	
  129

  
	
  13.17.

  	
   

  	
  Direct
  Website Communications

  	
  130

  
	
  13.18.

  	
   

  	
  USA
  PATRIOT Act

  	
  131

  
	
  13.19.

  	
   

  	
  Judgment
  Currency

  	
  131

  
	
  13.20.

  	
   

  	
  Payments
  Set Aside

  	
  132

  
	
  13.21.

  	
   

  	
  Acknowledgements
  Relating to the Closing Date

  	
  132

  



 


SCHEDULES


 


	
  Schedule
  1.1(b)

  	
   

  	
  Commitments

  
	
  Schedule
  1.1(g)

  	
   

  	
  Debt
  Repayment

  
	
  Schedule
  6.3

  	
   

  	
  Local
  Counsels

  
	
  Schedule
  8.3

  	
   

  	
  Conflicts

  
	
  Schedule
  8.4

  	
   

  	
  Litigation

  
	
  Schedule
  8.12

  	
   

  	
  Subsidiaries

  
	
  Schedule
  13.2

  	
   

  	
  Notice
  Addresses

  



 


EXHIBITS


 


	
  Exhibit A

  	
   

  	
  Form of
  Senior Unsecured Guarantee*

  
	
  Exhibit B-1

  	
   

  	
  Form of
  Senior Refinancing Indenture

  
	
  Exhibit B-2

  	
   

  	
  Senior
  Take-out Notes Indenture

  
	
  Exhibit C

  	
   

  	
  Form of
  Senior Refinancing Registration Rights Agreement*

  
	
  Exhibit D-1

  	
   

  	
  Form of
  Exchange Notice for Senior Cash Pay Loans*

  
	
  Exhibit D-2

  	
   

  	
  Form of
  Exchange Notice for Senior PIK Loans*

  
	
  Exhibit E-1

  	
   

  	
  Form of
  Legal Opinion of Simpson Thacher & Bartlett LLP*

  
	
  Exhibit E-2

  	
   

  	
  Form of
  Legal Opinion of General Counsel*

  
	
  Exhibit F

  	
   

  	
  Form of
  Loan Party Closing Certificate*

  
	
  Exhibit G

  	
   

  	
  Form of
  Assignment and Acceptance*

  



 


iv

















 


	
  Exhibit H-1

  	
   

  	
  Form of Promissory Note (Cash Pay)*

  
	
  Exhibit H-2

  	
   

  	
  Form of
  Promissory Note (PIK)*

  



 






*              In the same form as those Exhibits in the Original
Senior Unsecured Loan Agreement.


 


v
















 


SENIOR UNSECURED LOAN AGREEMENT dated as of September 24,
2007, as amended and restated as of October 24, 2007 (the “Amended and Restated Senior Unsecured Loan Agreement”),
among FIRST DATA CORPORATION, a Delaware corporation (the “Company”
or the “Borrower”), the lending institutions
from time to time parties hereto (each a “Lender” and,
collectively, the “Lenders”),
CITIBANK, N.A., as Administrative Agent (such terms and each other capitalized
term used but not defined in this preamble having the meaning provided in Section 1),
CREDIT SUISSE, CAYMAN ISLANDS BRANCH, as Syndication Agent, and CITIGROUP
GLOBAL MARKETS INC., CREDIT SUISSE SECURITIES (USA) LLC, DEUTSCHE BANK
SECURITIES INC., GOLDMAN SACHS CREDIT PARTNERS L.P., HSBC SECURITIES (USA)
INC., LEHMAN BROTHERS INC. and MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED, as Joint Lead Arrangers and Bookrunners.


 


WHEREAS, the Borrower, the Lenders party thereto
(the “Original Lenders”), Citibank, N.A., as
administrative agent, Credit Suisse, Cayman Islands Branch, as syndication
agent and Citigroup Global Markets
Inc., Credit Suisse Securities
(USA) LLC, Deutsche Bank Securities Inc., Goldman Sachs Credit Partners L.P.,
HSBC Securities (USA) Inc., Lehman Brothers Inc. and Merrill Lynch, Pierce,
Fenner & Smith Incorporated, as joint lead arrangers and
bookrunners, originally entered into a senior unsecured loan agreement on September 24,
2007 (the “Original Senior Unsecured Loan Agreement”)
and the parties hereto desire to amend and restate the Original Senior
Unsecured Loan Agreement on and subject to the terms and conditions set forth
herein;


 


WHEREAS, pursuant to the Agreement and Plan of
Merger (as amended from time to time in accordance therewith, the “Acquisition Agreement”), dated as of April 1, 2007, by
and among the Borrower, Holdings and Merger Sub, Merger Sub merged with and
into the Borrower (the “Merger”), with
the Borrower surviving the Merger as a Wholly Owned Subsidiary of Holdings;


 


WHEREAS, to fund, in part, the Merger, Affiliates of
Kohlberg Kravis Roberts & Co., L.P. and certain other investors
contributed an amount in cash to Holdings and/or a direct or indirect parent
thereof in exchange for Stock and Stock Equivalents (which cash was contributed
to the Borrower in exchange for common Stock of the Borrower) (such
contribution, the “Equity Investment”),
which was no less than 22.5% of the aggregate pro forma
capitalization of the Borrower on the Original Closing Date (the “Minimum Equity Amount”);


 


WHEREAS, in connection with the foregoing, the
Lenders extended credit in the form of Senior Interim Loans to the Borrower on
the Original Closing Date, in Dollars, in an aggregate principal amount of
$6,500,000,000, which initially consisted of (a) $3,750,000,000 of Senior
Interim Cash Pay Loans and (b) $2,750,000,000 of Senior Interim PIK Loans;


 


WHEREAS, to consummate the transactions contemplated
by the Acquisition Agreement, the Borrower entered into (a) a senior
secured credit agreement, dated as of the Original Closing Date, by and among
the Borrower, the lenders from time to time parties thereto, Credit Suisse,
Cayman Islands Branch, as administrative agent, swingline lender and letter of
credit issuer, Citibank, N.A., as syndication agent, and Credit Suisse
Securities (USA) LLC, Citigroup Global Markets Inc., Deutsche Bank Securities
Inc., Goldman Sachs Credit Partners L.P., HSBC Securities (USA) Inc., Lehman
Brothers Inc. and Merrill Lynch, Pierce, Fenner & 


 

















 


Smith Incorporated, as joint lead arrangers and
bookrunners, and the other agents party thereto (as the same may be amended,
supplemented or otherwise modified from time to time in accordance therewith,
the “Senior Secured Credit Agreement”),
pursuant to which (i)(1) the Borrower borrowed term loans in an aggregate
principal amount of $11,775,000,000 and (2) a euro tranche term loan in an
aggregate principal amount of  €709,219,858.16
(together, the “Senior Secured Original Closing Date Term
Loans”), (ii) the Borrower may borrow term loans in an aggregate
principal amount of up to $225,000,000 (the “Senior
Secured Delayed Draw Term Loans”), (iii) the Borrower may
borrow revolving credit loans (the “Senior Secured Revolving
Credit Loans”) in an aggregate principal amount of up to
$2,000,000,000, (iv) the Borrower may request letters of credit in an
aggregate amount not to exceed $500,000,000 (which will reduce amounts available
for Senior Secured Revolving Credit Loans), and (b) a senior subordinated
interim loan agreement, dated as of the Original Closing Date, by and among the
Borrower, the lenders from time to time parties thereto, Citibank, N.A., as
administrative agent, Credit Suisse, Cayman Islands Branch, as syndication
agent, and Citigroup Global Markets Inc., Credit Suisse Securities (USA) LLC,
Deutsche Bank Securities Inc., Goldman Sachs Credit Partners L.P., HSBC
Securities (USA) Inc., Lehman Brothers Inc. and Merrill Lynch, Pierce, Fenner &
Smith Incorporated, as joint lead arrangers and bookrunners (as the same may be
amended, supplemented or otherwise modified from time to time in accordance
therewith, the “Senior Subordinated Interim Loan Agreement”),
pursuant to which the Borrower borrowed senior subordinated loans in an
aggregate principal amount of $2,500,000,000 (the “Senior Subordinated
Interim Loans”); and


 


WHEREAS, the net proceeds of the Senior Interim
Loans was used by the Borrower, together with (a) the net proceeds of the
Senior Secured Original Closing Date Term Loans, the Senior Secured Revolving
Credit Loans drawn on the Original Closing Date and the Senior Subordinated
Interim Loans and (b) the net proceeds of the Equity Investments, on the
Original Closing Date (or, in the case of the Debt Repayment, such later date
as may be necessary to effect the Debt Repayments in accordance with the tender
offers therefor) solely to effect the Merger, to effect the Debt Repayments and
to pay Transaction Expenses.


 


WHEREAS, the Borrower will issue under the Senior
Take-out Notes Indenture, dated as of October 24, 2007 among the Borrower,
the guarantors thereunder and Wells Fargo Bank, National Association, as
trustee (the “Senior Take-out Notes Indenture”),
$2,200,000,000 in aggregate principal amount of 97/8% senior notes due 2015 (the
“Senior Take-out Notes”) pursuant to Rule 144A
and Regulation S under the Securities Act of 1933, as amended (the “Senior
Take-out Notes Offering”).


 


WHEREAS, the parties hereto desire to amend and
restate the Original Senior Unsecured Loan Agreement in its entirety on the
Closing Date to, inter alia, (1) reduce the aggregate
principal amount of Senior Cash Pay Loans to $1,550,000,000 as reflected on
Schedule 1.1(b) hereto and (2) make certain changes in the provisions
in Section 5.2, Section 9, Section 13.1 and any related
definitions thereto;


 


WHEREAS, the parties hereto have agreed to amend and
restate the Original Senior Unsecured Loan Agreement in its entirety to read as
set forth in this Agreement, and it has been agreed by the parties to the
Original Senior Unsecured Loan Agreement that the Loans 


 


2

















 


outstanding as of the Closing Date, after giving
effect to the reduction of Senior Cash Pay Loans to $1,550,000,000, and other “Obligations”
under (and as defined herein) the Original Senior Unsecured Loan Agreement
(including indemnities) shall be governed by and deemed to be outstanding under
this Agreement with the intent that the terms of this Agreement shall supersede
the terms of the Original Senior Unsecured Loan Agreement (which shall
hereafter have no further effect upon the parties thereto other than with
respect to any action, event, representation, warranty or covenant occurring,
made or applying prior to the Closing Date), and all references to the Original
Senior Unsecured Loan Agreement in any Loan Document or other document or
instrument delivered in connection therewith shall be deemed to refer to this
Agreement and the provisions hereof and (2) it is agreed and understood
that this Agreement does not constitute a novation, satisfaction, payment or
reborrowing of any Obligation under the Original Senior Unsecured Loan
Agreement or any other Loan Document except as expressly modified by this
Agreement, nor does it operate as a waiver of any right, power or remedy of any
Lender under any Loan Document (other than the Original Senior Unsecured Loan
Agreement);


 


NOW, THEREFORE, the parties hereto hereby agree to
amend and restate the Original Senior Unsecured Loan Agreement, and the
Original Senior Unsecured Loan Agreement is hereby amended and restated in its
entirety as follows:


 


SECTION 1.                 Definitions


 


1.1.          Defined Terms.


 


(a)           As used herein, the following terms shall have the
meanings specified in this Section 1.1 unless the context otherwise
requires (it being understood that defined terms in this Agreement shall
include in the singular number the plural and in the plural the singular):


 


“ABR” shall mean
for any day a fluctuating rate per annum equal
to the higher of (a) the Federal Funds Effective Rate plus 1/2 of
1% and (b) the rate of interest in effect for such day as announced from
time to time by the Administrative Agent as its “prime rate.”  The “prime rate” is a rate set by the
Administrative Agent based upon various factors including the Administrative
Agent’s costs and desired return, general economic conditions and other factors,
and is used as a reference point for pricing some loans, which may be priced
at, above, or below such announced rate. 
Any change in the ABR due to a change in such rate announced by the Administrative
Agent or in the Federal Funds Effective Rate shall take effect at the opening
of business on the day specified in the announcement of such change.


 


“ABR Loan” shall
mean each Loan bearing interest based on the ABR.


 


“Acceptable Commitment”
shall have the meaning provided in Section 9.8(b).


 


“Acquired Indebtedness” shall mean, with
respect to any specified Person,


 


(1)           Indebtedness
of any other Person existing at the time such other Person is merged with or
into or became a Restricted Subsidiary of such specified Person, including Indebtedness
incurred in connection with, or in contemplation of, such other Person merging
with or into or becoming a Restricted Subsidiary of such specified Person, and


 


3

















 


(2)           Indebtedness
secured by a Lien encumbering any asset acquired by such specified Person.


 


“Acquisition Agreement”
shall have the meaning provided in the preamble to this Agreement.


 


“Administrative Agent”
shall mean Citibank, N.A., as the administrative agent for the Lenders under
this Agreement and the other Loan Documents, or any successor administrative
agent pursuant to Section 12.


 


“Administrative Agent’s
Office” shall mean the Administrative Agent’s address and, as
appropriate, account as set forth on Schedule 13.2 or such other address
or account as the Administrative Agent may from time to time notify to the
Borrower and the Lenders.


 


“Administrative
Questionnaire” shall have the meaning provided in Section 13.6(b)(ii)(D).


 


“Affiliate”
shall mean, with respect to any Person, any other Person directly or indirectly
controlling, controlled by, or under direct or indirect common control with
such Person.  A Person shall be deemed to
control another Person if such Person possesses, directly or indirectly, the
power to direct or cause the direction of the management and policies of such
other Person, whether through the ownership of voting securities, by contract
or otherwise.


 


“Agent Parties”
shall have the meaning provided in Section 13.17(c).


 


“Agents” shall
mean the Administrative Agent, the Syndication Agent and each Joint Lead
Arranger and Bookrunner.


 


“Agreement”
shall mean this Amended and Restated Senior Unsecured Loan Agreement, as the
same may from time to time be further amended, restated or otherwise modified
and in effect on such date in accordance with the terms hereof.


 


“Agreement Currency”
shall have the meaning provided in Section 13.19.


 


“AHYDO redemption date”
shall have the meaning provided in Section 5.1(b).


 


“Applicable ABR Margin”
shall mean at any date, with respect to each ABR Loan, (a) 2.50% per annum with respect to Senior Cash Pay Loans and (b) 3.50%
per annum with respect to Senior PIK
Loans.  If the Loans are not paid within
the six-month period following the Original Closing Date, the Applicable ABR
Margin will increase by 0.50% per annum at
the end of such six-month period and shall increase by an additional 0.50% per annum at the end of each three-month period thereafter
until the Interim Loan Conversion Date. 
At the Interim Loan Conversion Date the Applicable ABR Margin will
increase by 0.25% per annum and shall increase by
an additional 0.25% per annum at
the end of each three-month period thereafter until the Term Loan Maturity
Date.  Notwithstanding the foregoing, the
Applicable ABR Margin shall be capped such that the applicable interest rate (i) in
the case of Senior Cash Pay Loans, shall not 


 


4

















 


exceed the Senior Cash Pay Fixed Rate and (ii) in
the case of Senior PIK Loans, shall not exceed the Senior PIK Fixed Rate.


 


“Applicable Commitment”
shall have the meaning provided in Section 9.8(b).


 


“Applicable LIBOR Margin”
shall mean at any date, with respect to each LIBOR Loan, (a) 3.50% per annum with respect to Senior Cash Pay Loans and (b) 4.50%
per annum with respect to Senior PIK
Loans.  If the Loans are not paid within
the six-month period following the Original Closing Date, the Applicable LIBOR
Margin will increase by 0.50% per annum at
the end of such six-month period and shall increase by an additional 0.50% per annum at the end of each three-month period thereafter
until the Interim Loan Conversion Date. 
At the Interim Loan Conversion Date, the Applicable LIBOR Margin will
increase by 0.25% per annum and shall increase by
an additional 0.25% per annum at
the end of each three-month period thereafter until the Term Loan Maturity
Date.  Notwithstanding the foregoing, the
Applicable LIBOR Margin shall be capped such that the applicable interest rate (i) in
the case of Senior Cash Pay Loans, shall not exceed the Senior Cash Pay Fixed
Rate and (ii) in the case of Senior PIK Loans, shall not exceed the Senior
PIK Fixed Rate.


 


“Approved Fund”
shall mean any Fund that is administered or managed by (a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or an Affiliate of an entity that
administers or manages a Lender.


 


“Asset Sale” shall mean:


 


(1)           the
sale, conveyance, transfer or other disposition, whether in a single
transaction or a series of related transactions, of property or assets
(including by way of a Sale and Lease-Back Transaction) of the Borrower or any
of its Restricted Subsidiaries (each referred to in this definition as a “disposition”); or


 


(2)           the
issuance or sale of Equity Interests of any Restricted Subsidiary, whether in a
single transaction or a series of related transactions (other than Preferred
Stock of Restricted Subsidiaries issued in compliance with Section 9.7
hereof);


 


in each case, other than:


 


(a)           any
disposition of Cash Equivalents or Investment Grade Securities or obsolete or
worn out equipment in the ordinary course of business or any disposition of inventory
or goods (or other assets) no longer used in the ordinary course of business;


 


(b)           the
disposition of all or substantially all of the assets of the Borrower in a
manner permitted pursuant to the provisions described under Section 9.14
hereof or any disposition that constitutes a Change of Control pursuant to this
Agreement;


 


(c)           the
making of any Restricted Payment or Permitted Investment that is permitted to
be made, and is made, under Section 9.5 hereof;


 


5

















 


(d)           any
disposition of assets or issuance or sale of Equity Interests of any Restricted
Subsidiary in any transaction or series of related transactions with an
aggregate fair market value of less than $50.0 million;


 


(e)           any
disposition of property or assets or issuance of securities by a Restricted
Subsidiary of the Borrower to the Borrower or by the Borrower or a Restricted
Subsidiary of the Borrower to another Restricted Subsidiary of the Borrower;


 


(f)            to
the extent allowable under Section 1031 of the Code or any comparable or
successor provision, any exchange of like property (excluding any boot thereon)
for use in a Similar Business;


 


(g)           the
lease, assignment or sublease of any real or personal property in the ordinary
course of business;


 


(h)           any
issuance or sale of Equity Interests in, or Indebtedness or other securities
of, an Unrestricted Subsidiary;


 


(i)            foreclosures,
condemnation or any similar action on assets or the granting of Liens not prohibited
by this Agreement;


 


(j)            sales
of accounts receivable, or participations therein, in connection with any
Receivables Facility;


 


(k)           the
sale or discount of inventory, accounts receivable or notes receivable in the
ordinary course of business or the conversion of accounts receivable to notes receivable;


 


(l)            any
financing transaction with respect to property built or acquired by the
Borrower or any Restricted Subsidiary after the Closing Date, including Sale
and Lease-Back Transactions and asset securitizations permitted by this
Agreement;


 


(m)          dispositions
in the ordinary course of business, including disposition in connection with
any Settlement and dispositions of Settlement Assets and Merchant Agreements;


 


(n)           sales,
transfers and other dispositions of Investments in joint ventures and Merchant
Acquisition and Processing Alliances to the extent required by, or made pursuant
to, customary buy/sell arrangements between the joint venture parties set forth
in joint venture arrangements and similar binding arrangements;


 


(o)           sales,
transfers and other dispositions of Investments in Merchant Acquisition and
Processing Alliances (regardless of the form of legal entity) relating to any equity
reallocation in connection with an asset or equity contribution; and


 


(p)           any
issuance or sale of Equity Interests of any Restricted Subsidiary to any Person
operating in a Similar Business for which such Restricted Subsidiary provides 


 


6

















 


shared purchasing, billing, collection or
similar services in the ordinary course of business.


 


“Assignment and Acceptance”
shall mean an assignment and acceptance substantially in the form of Exhibit G,
or such other form as may be approved by the Administrative Agent.


 


“Authorized Officer”
shall mean the Chief Executive Officer, President, the Chief Financial Officer,
the Treasurer, the Vice President-Finance or any other senior officer of the
Borrower designated as such in writing to the Administrative Agent by the
Borrower.


 


“Bankruptcy Code”
shall mean Title 11 of the United States Code, as amended.


 


“Bankruptcy Law”
shall mean the Bankruptcy Code and any similar federal, state or foreign law
for the relief of debtors.


 


“benefited Lender”
shall have the meaning provided in Section 13.8(a).


 


“Board” shall
mean the Board of Governors of the Federal Reserve System of the United States
(or any successor).


 


“Borrower” shall
have the meaning provided in the preamble to this Agreement.


 


“Borrowing”
shall mean and include the incurrence of the Loans on the Original Closing Date
(or resulting from conversions on a given date after the Original Closing Date)
having, in the case of LIBOR Loans, the same Interest Period.


 


“Business Day”
shall mean any day excluding Saturday, Sunday and any other day on which
banking institutions in New York City are authorized by law or other governmental
actions to close, and, if such day relates to any interest rate settings as to
a LIBOR Loan, any fundings, disbursements, settlements and payments in Dollars
in respect of any such LIBOR Loan, or any other dealings in Dollars to be
carried out pursuant to this Agreement in respect of any such LIBOR Loan, such
day shall be a day on which dealings in deposits in Dollars are conducted by
and between banks in the London interbank eurodollar market.


 


“Capital Lease”
shall mean, as applied to any Person, any lease of any property (whether real,
personal or mixed) by that Person as lessee that, in conformity with GAAP, is,
or is required to be, accounted for as a capital lease on the balance sheet of
that Person.


 


“Capital Stock” shall mean:


 


(1)           in
the case of a corporation, corporate stock;


 


(2)           in
the case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate
stock;


 


7

















 


(3)           in
the case of a partnership or limited liability company, partnership or
membership interests (whether general or limited); and


 


(4)           any
other interest or participation that confers on a Person the right to receive a
share of the profits and losses of, or distributions of assets of, the issuing
Person.


 


“Capitalized Lease
Obligations” shall mean, as applied to any Person, all obligations
under Capital Leases of such Person or any of its Subsidiaries, in each case
taken at the amount thereof accounted for as liabilities in accordance with
GAAP.


 


“Capitalized Software
Expenditures” shall mean, for any period, the aggregate of all
expenditures (whether paid in cash or accrued as liabilities) by a Person and
its Restricted Subsidiaries during such period in respect of purchased software
or internally developed software and software enhancements that, in conformity
with GAAP, are or are required to be reflected as capitalized costs on the
consolidated balance sheet of a Person and its Restricted Subsidiaries.


 


“Cash Equivalents” shall mean:


 


(1)           United
States dollars;


 


(2)           euros
or any national currency of any participating member state of the EMU or such
local currencies held by the Borrower and its Restricted Subsidiaries from time
to time in the ordinary course of business;


 


(3)           securities
issued or directly and fully and unconditionally guaranteed or insured by the
U.S. government (or any agency or instrumentality thereof the securities of
which are unconditionally guaranteed as a full faith and credit obligation of
the U.S. government) with maturities of 24 months or less from the date of
acquisition;


 


(4)           certificates
of deposit, time deposits and eurodollar time deposits with maturities of one
year or less from the date of acquisition, bankers’ acceptances with maturities
not exceeding one year and overnight bank deposits, in each case with any commercial
bank having capital and surplus of not less than $500.0 million in the case of
U.S. banks and $100.0 million (or the U.S. dollar equivalent as of the date of
determination) in the case of non-U.S. banks;


 


(5)           repurchase
obligations for underlying securities of the types described in clauses (3) and
(4) entered into with any financial institution meeting the
qualifications specified in clause (4) above;


 


(6)           commercial
paper rated at least P-1 by Moody’s or at least A-1 by S&P and in each case
maturing within 24 months after the date of creation thereof;


 


(7)           marketable
short-term money market and similar securities having a rating of at least P-2
or A-2 from either Moody’s or S&P, respectively (or, if at any time neither
Moody’s nor S&P shall be rating such obligations, an equivalent rating from
another 


 


8

















 


Rating Agency), and in each
case maturing within 24 months after the date of creation thereof;


 


(8)           readily
marketable direct obligations issued by any state, commonwealth or territory of
the United States or any political subdivision or taxing authority thereof
having an Investment Grade Rating from either Moody’s or S&P with
maturities of 24 months or less from the date of acquisition;


 


(9)           Indebtedness
or Preferred Stock issued by Persons with a rating of A or higher from S&P
or A2 or higher from Moody’s with maturities of 24 months or less from the date
of acquisition;


 


(10)         Investments
with average maturities of 24 months or less from the date of acquisition in
money market funds rated AAA- (or the equivalent thereof) or better by S&P
or Aaa3 (or the equivalent thereof) or better by Moody’s; and


 


(11)         investment
funds investing 95% of their assets in securities of the types described in clauses
(1) through (10) above.


 


Notwithstanding the foregoing, Cash Equivalents
shall include amounts denominated in currencies other than those set forth in clauses
(1) and (2) above; provided that such amounts are
converted into any currency listed in clauses (1) and (2) as
promptly as practicable and in any event within ten Business Days following the
receipt of such amounts.


 


“Cash Interest”
shall have the meaning provided in Section 2.8(a)(ii).


 


“Casualty Event”
shall mean, with respect to any property of any Person, any loss of or damage
to, or any condemnation or other taking by a Governmental Authority of, such
property for which such Person or any of its Restricted Subsidiaries receives
insurance proceeds, or proceeds of a condemnation award or other compensation.


 


“Change in Law”
shall mean (a) the adoption of any law, treaty, order, policy, rule or
regulation after the Original Closing Date, (b) any change in any law,
treaty, order, policy, rule or regulation or in the interpretation or
application thereof by any Governmental Authority after the Original Closing
Date or (c) compliance by any Lender with any guideline, request,
directive or order issued or made after the Original Closing Date by any
central bank or other governmental or quasi-governmental authority (whether or
not having the force of law).


 


“Change of Control” shall mean the
occurrence of any of the following:


 


(1)           the
sale, lease or transfer, in one or a series of related transactions, of all or
substantially all of the assets of the Borrower and its Subsidiaries, taken as
a whole, to any Person other than a Permitted Holder; or


 


(2)           the
Borrower becomes aware (by way of a report or any other filing pursuant to Section 13(d) of
the Exchange Act, proxy, vote, written notice or otherwise) of the acquisition
by any Person or group (within the meaning of Section 13(d)(3) or Section 


 


9

















 


14(d)(2) of the
Exchange Act, or any successor provision), including any group acting for the
purpose of acquiring, holding or disposing of securities (within the meaning of
Rule 13d-5(b)(1) under the Exchange Act or any successor provision),
other than the Permitted Holders, in a single transaction or in a series of
related transactions, by way of merger, consolidation or other business
combination or purchase of beneficial ownership (within the meaning of Rule 13d-3
under the Exchange Act, or any successor provision) of 50% or more of the total
voting power of the Voting Stock of the Borrower or any of its direct or
indirect parent companies holding directly or indirectly 100% of the total
voting power of the Voting Stock of the Borrower.


 


“Change of Control Offer”
shall have the meaning provided in Section 9.12(a).


 


“Change of Control
Prepayment” shall have the meaning provided in Section 9.12(a).


 


“Change of Control
Prepayment Date” shall have the meaning provided in Section 9.12(a)(2).


 


“Class”, when
used in reference to any Loan or Borrowing, shall refer to whether such Loan,
or the Loans comprising such Borrowing, are Senior Cash Pay Loans or Senior PIK
Loans, when used in reference to any Commitment, shall refer to whether such
Commitment is a Senior Interim Cash Pay Commitment or Senior Interim PIK
Commitment and when used in reference to any Required Debt, shall refer to
whether such Required Debt is (i) the Senior Interim Loans, (ii) the
Senior Notes, (iii) any securities issued to refinance under clause (i) or
(ii) above or (iv) the Senior Take-out Notes.


 


“Closing Date”
shall mean October 24, 2007.


 


“Code” shall
mean the Internal Revenue Code of 1986, as amended from time to time, and the
regulations promulgated and rulings issued thereunder.  Section references to the Code are to
the Code, as in effect at the Original Closing Date, and any subsequent
provisions of the Code, amendatory thereof, supplemental thereto or substituted
therefor.


 


“Commitments”
shall mean, with respect to each Lender (to the extent applicable), such Lender’s
Senior Interim Loan Commitment.


 


“Committed Lenders”
shall mean Citibank, N.A., Credit Suisse, Cayman Islands Branch, Deutsche Bank
AG Cayman Islands Branch, Goldman Sachs Credit Partners L.P., HSBC Bank USA,
National Association, Lehman Brothers Commercial Bank, Lehman Commercial Paper
Inc. and Merrill Lynch Capital Corporation.


 


“Communications”
shall have the meaning provided in Section 13.17(a).


 


“Confidential Information”
shall have the meaning provided in Section 13.16.


 


“Consolidated Depreciation
and Amortization Expense” shall mean with respect to any Person for
any period, the total amount of depreciation and amortization expense, 


 


10

















 


including the amortization of deferred financing
fees, debt issuance costs, commissions, fees and expenses and Capitalized
Software Expenditures, customer acquisition costs and incentive payments,
conversion costs, contract acquisition costs, and amortization of unrecognized
prior service costs and actuarial gains and losses related to pension and other
post-employment benefits, of such Person and its Restricted Subsidiaries for
such period on a consolidated basis and otherwise determined in accordance with
GAAP.


 


“Consolidated Interest
Expense” shall mean, with respect to any Person for any period,
without duplication, the sum of:


 


(1)           consolidated
interest expense of such Person and its Restricted Subsidiaries for such period,
to the extent such expense was deducted (and not added back) in computing
Consolidated Net Income (including (a) amortization of original issue discount
resulting from the issuance of Indebtedness at less than par, (b) all
commissions, discounts and other fees and charges owed with respect to letters
of credit or bankers’ acceptances, (c) non-cash interest expense (but
excluding any non-cash interest expense attributable to the movement in the
mark to market valuation of Hedging Obligations or other derivative instruments
pursuant to GAAP), (d) the interest component of Capitalized Lease
Obligations, and (e) net payments, if any, pursuant to interest rate
Hedging Obligations with respect to Indebtedness, and excluding (t) penalties
and interest relating to taxes, (u) accretion or accrual of discounted
liabilities not constituting Indebtedness, (v) any expense resulting from
the discounting of obligations in connection with the application of
recapitalization accounting or purchase accounting, (w) “additional
interest” with respect to the Senior Refinancing Registration Rights Agreement,
the Registration Rights Agreement relating to the Senior Subordinated Notes and
the Registration Rights Agreement relating to the Senior Take-out Notes and any
comparable “additional interest” with respect to other securities, (x) amortization
of deferred financing fees, debt issuance costs, commissions, fees and
expenses, (y) any expensing of bridge, commitment and other financing fees
and (z) commissions, discounts, yield and other fees and charges
(including any interest expense) related to any Receivables Facility); plus


 


(2)           consolidated
capitalized interest of such Person and its Restricted Subsidiaries for such
period, whether paid or accrued; less


 


(3)           interest
income for such period.


 


For purposes of this definition, interest on a Capitalized
Lease Obligation shall be deemed to accrue at an interest rate reasonably
determined by such Person to be the rate of interest implicit in such
Capitalized Lease Obligation in accordance with GAAP.


 


“Consolidated Leverage
Ratio,” with respect to any Person as of any date of determination,
shall mean the ratio of (x) Consolidated Total Indebtedness of such
Person, less the aggregate amount of cash and Cash Equivalents held (free and
clear of all Liens, other than Liens permitted under Section 9.10
hereof, other than clause (20) of the definition of Permitted Liens) by (A) the
Borrower and its Restricted Subsidiaries (other than settlement assets as shown
on the balance sheet of such Person) and (B) any Joint Venture (other than
settlement assets as shown 


 


11

















 


on the balance sheet of such Person) in an amount
corresponding to the Borrower’s or any Restricted Subsidiary’s, as applicable,
proportionate share thereof, based on its ownership of such Joint Venture’s
voting stock, computed as of the end of the most recent fiscal quarter for
which internal financial statements are available immediately preceding the
date on which such event for which such calculation is being made shall occur
to (y) the aggregate amount of EBITDA of such Person for the period of the
most recently ended four full consecutive fiscal quarters for which internal
financial statements are available immediately preceding the date on which such
event for which such calculation is being made shall occur, in each case with
such pro forma adjustments to Consolidated
Total Indebtedness and EBITDA as are appropriate and consistent with the pro forma adjustment provisions set forth in the definition
of “Fixed Charge Coverage Ratio.”


 


“Consolidated Net Income”
shall mean, with respect to any Person for any period, the aggregate of the Net
Income of such Person for such period, on a consolidated basis, and otherwise
determined in accordance with GAAP; provided, however, that,
without duplication,


 


(1)           any
after-tax effect of extraordinary, non-recurring or unusual gains or losses
(less all fees and expenses relating thereto) or expenses (including relating
to the Transaction or the Senior Take-out Notes Offering to the extent incurred
on or prior to September 30, 2008 and litigation and regulatory
settlements), severance, relocation costs, consolidation and closing costs,
integration and facilities opening costs, spin-off costs, business optimization
costs and expenses (including data center consolidation initiatives and other
costs relating to initiatives aimed at profitability improvements), transition
costs, restructuring costs, charges or reserves, signing, retention or
completion bonuses, and curtailments or modifications to pension and post-retirement
employee benefit plans shall be excluded,


 


(2)           the
cumulative effect of a change in accounting principles during such period shall
be excluded,


 


(3)           any
after-tax effect of income (loss) from disposed, abandoned or discontinued
operations and any net after-tax gains or losses on disposal of disposed, abandoned,
transferred, closed or discontinued operations shall be excluded,


 


(4)           any
after-tax effect of gains or losses (less all fees and expenses relating
thereto) attributable to asset dispositions or abandonments other than in the
ordinary course of business, as determined in good faith by the Borrower, shall
be excluded,


 


(5)           the
Net Income for such period of any Person that is an Unrestricted Subsidiary
shall be excluded, and, solely for the purpose of determining the amount
available for Restricted Payments under clause 3(a) of Section 9.5(a) hereof,
the Net Income for such period of any Person that is not a Subsidiary or that
is accounted for by the equity method of accounting shall be excluded; provided
that Consolidated Net Income of the Borrower shall be increased by the amount
of dividends or distributions or other 


 


12
















 


payments that are actually
paid in cash (or to the extent converted into cash) to the referent Person or a
Restricted Subsidiary thereof in respect of such period,


 


(6)           solely
for the purpose of determining the amount available for Restricted Payments under
clause (3)(a) of Section 9.5(a) hereof, the Net
Income for such period of any Restricted Subsidiary (other than any Guarantor)
shall be excluded to the extent that the declaration or payment of dividends or
similar distributions by that Restricted Subsidiary of its Net Income is not at
the date of determination wholly permitted without any prior governmental
approval (which has not been obtained) or, directly or indirectly, is otherwise
restricted by the operation of the terms of its charter or any agreement, instrument,
judgment, decree, order, statute, rule, or governmental regulation applicable
to that Restricted Subsidiary or its stockholders, unless such restriction with
respect to the payment of dividends or similar distributions has been legally
waived; provided that Consolidated Net Income of the Borrower will be
increased by the amount of dividends or other distributions or other payments
actually paid in cash (or to the extent converted into cash) or Cash
Equivalents to the Borrower or a Restricted Subsidiary thereof in respect of
such period, to the extent not already included therein,


 


(7)           effects
of adjustments (including the effects of such adjustments pushed down to the
Borrower and its Restricted Subsidiaries) in such Person’s consolidated financial
statements pursuant to GAAP resulting from the application of recapitalization
accounting or purchase accounting in relation to the Transaction or any
consummated acquisition or the amortization or write-off of any amounts
thereof, net of taxes, shall be excluded,


 


(8)           any
effect of income (loss) from the early extinguishment of Indebtedness shall be
excluded,


 


(9)           the
mark-to-market effects on Net Income during the period of any derivatives or
similar financial instruments, including the ineffective portion of Hedging Obligations
(other than such effects settled in cash) shall be excluded,


 


(10)         any
impairment charge or asset write-off or write-down, including, without
limitation, impairment charges or asset write-offs related to intangible
assets, long-lived assets or investments in debt and equity securities, in each
case, pursuant to GAAP and the amortization of intangibles arising pursuant to
GAAP shall be excluded,


 


(11)         any
non-cash compensation charge or expense, including any such charge arising from
grants of stock appreciation or similar rights, stock options, restricted stock
or other rights, and any cash charges associated with the rollover,
acceleration or payout of Equity Interests by management of the Borrower or any
of its direct or indirect parent companies in connection with the Transaction,
shall be excluded,


 


(12)         any
fees and expenses incurred during such period, or any amortization thereof for
such period, in connection with any acquisition, Investment, Asset Sale, issuance
or repayment of Indebtedness, issuance of Equity Interests, refinancing
transaction 


 


13

















 


or amendment or modification
of any debt instrument (in each case, including any such transaction
consummated prior to the Closing Date and any such transaction undertaken but
not completed) and any charges or non-recurring merger costs incurred during
such period as a result of any such transaction shall be excluded,


 


(13)         accruals
and reserves that are established or adjusted within twelve months after the
Original Closing Date that are so required to be established as a result of the
Transaction in accordance with GAAP, or changes as a result of adoption or
modification of accounting policies, shall be excluded, and


 


(14)         to
the extent covered by insurance and actually reimbursed, or, so long as the
Borrower has made a determination that there exists reasonable evidence that
such amount will in fact be reimbursed by the insurer and only to the extent
that such amount is (a) not denied by the applicable carrier in writing
within 180 days and (b) in fact reimbursed within 365 days of the date of
such evidence (with a deduction for any amount so added back to the extent not
so reimbursed within 365 days), expenses with respect to liability or casualty
events or business interruption shall be excluded.


 


Notwithstanding the foregoing, for the purpose of Section 9.5
hereof only (other than clause (3)(d) of Section 9.5(a) hereof),
there shall be excluded from Consolidated Net Income any income arising from
any sale or other disposition of Restricted Investments made by the Borrower
and its Restricted Subsidiaries, any repurchases and redemptions of Restricted
Investments from the Borrower and its Restricted Subsidiaries, any repayments
of loans and advances which constitute Restricted Investments by the Borrower
or any of its Restricted Subsidiaries, any sale of the stock of an Unrestricted
Subsidiary or any distribution or dividend from an Unrestricted Subsidiary, in
each case only to the extent such amounts increase the amount of Restricted
Payments permitted under clause (3)(d) of Section 9.5(a) hereof.  Furthermore, there shall be excluded from
Consolidated Net Income any net income (losses) attributable to Integrated
Payment Systems Inc. and Integrated Payment Systems Canada Inc.


 


“Consolidated Secured Debt
Ratio” as of any date of determination, shall mean the ratio of (1) Consolidated
Total Indebtedness of the Borrower and its Restricted Subsidiaries that is
secured by Liens on collateral securing the Senior Secured Credit Agreement,
less the aggregate amount of cash and Cash Equivalents held (free and clear of
all Liens, other than Liens permitted under Section 9.10 hereof,
other than clause (20) of the definition of Permitted Liens) by (A) the
Borrower and its Restricted Subsidiaries (other than settlement assets as shown
on the balance sheet of such Person) and (B) any Joint Venture (other than
settlement assets as shown on the balance sheet of such Person) in an amount
corresponding to the Borrower’s or any Restricted Subsidiary’s, as applicable,
proportionate share thereof, based on its ownership of such Joint Venture’s
voting stock, computed as of the end of the most recent fiscal period for which
internal financial statements are available immediately preceding the date on
which such event for which such calculation is being made shall occur to (2) the
Borrower’s EBITDA for the most recently ended four full fiscal quarters for
which internal financial statements are available immediately preceding the
date on which such event for which such calculation is being made shall occur,
in each case with such pro forma
adjustments to Consolidated Total Indebtedness and 


 


14

















 


EBITDA as are appropriate and consistent with the pro forma adjustment provisions set forth in the definition
of “Fixed Charge Coverage Ratio.”


 


“Consolidated Total
Indebtedness” shall mean, as at any date of determination, an amount
equal to the sum of (1) the aggregate amount of all outstanding
Indebtedness of the Borrower and its Restricted Subsidiaries on a consolidated
basis consisting of Indebtedness for borrowed money, Obligations in respect of
Capitalized Lease Obligations and debt obligations evidenced by promissory
notes and similar instruments (and excluding, for the avoidance of doubt, all
obligations relating to Receivables Facilities) and (2) the aggregate
amount of all outstanding Disqualified Stock of the Borrower and all
Disqualified Stock and Preferred Stock of its Restricted Subsidiaries on a
consolidated basis, with the amount of such Disqualified Stock and Preferred
Stock equal to the greater of their respective voluntary or involuntary
liquidation preferences and maximum fixed repurchase prices, in each case
determined on a consolidated basis in accordance with GAAP.  For purposes hereof, the “maximum fixed repurchase price” of any Disqualified Stock or
Preferred Stock that does not have a fixed repurchase price shall be calculated
in accordance with the terms of such Disqualified Stock or Preferred Stock as
if such Disqualified Stock or Preferred Stock were purchased on any date on
which Consolidated Total Indebtedness shall be required to be determined
pursuant to this Agreement, and if such price is based upon, or measured by,
the fair market value of such Disqualified Stock or Preferred Stock, such fair
market value shall be determined reasonably and in good faith by the Borrower.


 


“Contingent Obligations”
shall mean, with respect to any Person, any obligation of such Person
guaranteeing any leases, dividends or other obligations that do not constitute
Indebtedness (“primary obligations”) of any other
Person (the “primary obligor”) in any manner,
whether directly or indirectly, including, without limitation, any obligation
of such Person, whether or not contingent,


 


(1)           to
purchase any such primary obligation or any property constituting direct or
indirect security therefor,


 


(2)           to advance or supply funds


 


(a)           for
the purchase or payment of any such primary obligation, or


 


(b)           to
maintain working capital or equity capital of the primary obligor or otherwise
to maintain the net worth or solvency of the primary obligor, or


 


(3)           to
purchase property, securities or services primarily for the purpose of assuring
the owner of any such primary obligation of the ability of the primary obligor
to make payment of such primary obligation against loss in respect thereof.


 


“Contractual Requirement”
shall have the meaning provided in Section 8.3.


 


“Credit Event” shall
mean and include the making (but not the conversion or continuation) of the
Loans on the Original Closing Date.


 


15

















 


“Credit Facilities”
shall mean, with respect to the Borrower or any of its Restricted Subsidiaries,
one or more debt facilities, including the Senior Secured Credit Agreement, or
other financing arrangements (including, without limitation, commercial paper
facilities or indentures) providing for revolving credit loans, term loans,
letters of credit or other long term indebtedness, including any notes,
mortgages, guarantees, collateral documents, instruments and agreements
executed in connection therewith, and any amendments, supplements,
modifications, extensions, renewals, restatements or refundings thereof and any
indentures or credit facilities or commercial paper facilities that replace,
refund or refinance any part of the loans, notes, other credit facilities or
commitments thereunder, including any such replacement, refunding or refinancing
facility or indenture that increases the amount permitted to be borrowed
thereunder or alters the maturity thereof (provided that such increase
in borrowings is permitted under Section 9.7 hereof) or adds
Restricted Subsidiaries as additional borrowers or guarantors thereunder and
whether by the same or any other agent, lender or group of lenders.


 


“Credit Suisse”
shall mean Credit Suisse, Cayman Islands Branch and its successors.


 


“Debt Incurrence Prepayment
Event” shall mean any issuance or incurrence by the Borrower or any
of the Restricted Subsidiaries of any Indebtedness (excluding any Indebtedness
permitted to be issued or incurred under Section 9.7(b) other
than in the case of Section 9.7(b)(2) or 9.7(b)(13)
with respect to any refinancing of Senior Indebtedness incurred under Section 9.7(b)(2)).


 


“Debt Repayment”
shall mean the repayment, prepayment, repurchase or defeasance of the
Indebtedness of the Borrower that is identified on Schedule 1.1(g) and
that is repaid, prepaid, repurchased or defeased on the Original Closing Date
(or such later date as may be necessary to effect the Debt Repayment in
accordance with the tender offers therefor).


 


“Declined Proceeds”
shall have the meaning provided in Section 5.2(h).


 


“Default” shall
mean any event, act or condition that with notice or lapse of time, or both,
would constitute an Event of Default.


 


“Defaulting Lender”
shall mean any Lender with respect to which a Lender Default is in effect.


 


“Deferred Net Cash Proceeds”
shall have the meaning provided such term in the definition of “Net Cash
Proceeds.”


 


“Deferred Net Cash Proceeds
Payment Date” shall have the meaning provided such term in the
definition of “Net Cash Proceeds.”


 


“Designated Non-cash
Consideration” shall mean the fair market value of non-cash consideration
received by the Borrower or a Restricted Subsidiary in connection with an Asset
Sale that is so designated as Designated Non-cash Consideration pursuant to an
Officer’s Certificate, setting forth the basis of such valuation, executed by the
principal financial officer of 


 


16

















 


the Borrower, less the amount of cash or Cash
Equivalents received in connection with a subsequent sale of or collection on
such Designated Non-cash Consideration.


 


“Designated Preferred Stock”
shall mean Preferred Stock of the Borrower or any parent company thereof (in
each case other than Disqualified Stock) that is issued for cash (other than to
a Restricted Subsidiary or an employee stock ownership plan or trust established
by the Borrower or any of its Subsidiaries) and is so designated as Designated
Preferred Stock, pursuant to an Officer’s Certificate executed by the principal
financial officer of the Borrower or the applicable parent company thereof, as
the case may be, on the issuance date thereof, the cash proceeds of which are
excluded from the calculation set forth in clause (3) of Section 9.5(a) hereof.


 


“Disqualified Stock”
shall mean, with respect to any Person, any Capital Stock of such Person which,
by its terms, or by the terms of any security into which it is convertible or
for which it is putable or exchangeable, or upon the happening of any event,
matures or is mandatorily redeemable (other than solely as a result of a change
of control or asset sale) pursuant to a sinking fund obligation or otherwise,
or is redeemable at the option of the holder thereof (other than solely as a
result of a change of control or asset sale), in whole or in part, in each case
prior to the date 91 days after the earlier of the Term Loan Maturity Date or
the date the Loans are no longer outstanding; provided, however,
that if such Capital Stock is issued to any plan for the benefit of employees
of the Borrower or its Subsidiaries or by any such plan to such employees, such
Capital Stock shall not constitute Disqualified Stock solely because it may be
required to be repurchased by the Borrower or its Subsidiaries in order to
satisfy applicable statutory or regulatory obligations.


 


“Dollars” and “$” shall mean dollars in lawful currency of the United
States of America.


 


“Domestic Subsidiary”
shall mean each Subsidiary of the Borrower that is organized under the laws of
the United States, any state thereof, or the District of Columbia.


 


“EBITDA” shall
mean, with respect to any Person for any period, the Consolidated Net Income of
such Person for such period


 


(1)           increased (without duplication) by:


 


(a)           provision
for taxes based on income or profits or capital gains, including, without limitation,
foreign, federal, state, franchise and similar taxes (such as the Pennsylvania
capital tax) and foreign withholding taxes (including penalties and interest
related to such taxes or arising from tax examinations) of such Person paid or
accrued during such period deducted (and not added back) in computing
Consolidated Net Income; plus


 


(b)           Fixed
Charges of such Person for such period (including (x) net losses on
Hedging Obligations or other derivative instruments entered into for the
purpose of hedging interest rate risk and (y) costs of surety bonds in
connection with financing activities, in each case, to the extent included in
Fixed Charges), 


 


17

















 


together with items excluded
from the definition of “Consolidated Interest Expense” pursuant to clauses
(1)(t), (u), (v), (w), (x), (y) and
(z) of the definition thereof, and, in each such case, to the extent the
same were deducted (and not added back) in calculating such Consolidated Net
Income; plus


 


(c)           Consolidated
Depreciation and Amortization Expense of such Person for such period to the
extent the same was deducted (and not added back) in computing Consolidated Net
Income; plus


 


(d)           any
expenses or charges (other than depreciation or amortization expense) related
to any Equity Offering, Permitted Investment, acquisition, disposition,
recapitalization or the incurrence of Indebtedness (and any amendment or
modification to any such transaction) permitted to be incurred by this
Agreement (including a refinancing thereof) (whether or not successful),
including (i) such fees, expenses or charges related to this Agreement,
the Senior Subordinated Interim Loan Agreement, the Senior Secured Credit
Agreement, the Senior Take-out Notes Offering and any other refinancings of
Senior Interim Loans or Senior Subordinated Interim Loans and (ii) any
amendment or other modification of the Senior Interim Loans, and, in each case,
deducted (and not added back) in computing Consolidated Net Income; plus


 


(e)           any
other non-cash charges, including any write-offs or write-downs, reducing
Consolidated Net Income for such period (provided that if any such
non-cash charges represent an accrual or reserve for potential cash items in
any future period, the cash payment in respect thereof in such future period
shall be subtracted from EBITDA to such extent, and excluding amortization of a
prepaid cash item that was paid in a prior period); plus


 


(f)            the
amount of any minority interest expense consisting of income attributable to
minority equity interests of third parties deducted (and not added back) in
such period in calculating Consolidated Net Income; plus


 


(g)           the
amount of management, monitoring, consulting and advisory fees and related
expenses paid in such period to the Investors to the extent otherwise permitted
under Section 9.9 hereof; plus


 


(h)           the
amount of net cost savings and net cash flow effect of revenue enhancements
related to new agreements, or amendments to existing agreements, with customers
or joint ventures, projected by the Borrower in good faith to be realized as a
result of specified actions taken or to be taken (calculated on a pro forma basis as though such cost savings and revenue
enhancements had been realized on the first day of such period), net of the
amount of actual benefits realized during such period from such actions; provided
that (x) such cost savings and enhancements are reasonably identifiable
and factually supportable, (y) such actions have been taken or are to be
taken within 12 months after the date of determination to take such action and (z) no
cost savings or revenue enhancements shall be 


 


18

















 


added pursuant to this clause
(h) to the extent duplicative of any expenses or charges relating to
such cost savings that are included in clause (e) above with respect
to such period (which adjustments may be incremental to pro forma
adjustments made pursuant to the second paragraph of the definition of “Fixed
Charge Coverage Ratio”); plus


 


(i)            the
amount of loss on sales of receivables and related assets to the Receivables
Subsidiary in connection with a Receivables Facility; plus


 


(j)            any
costs or expense incurred by the Borrower or a Restricted Subsidiary pursuant
to any management equity plan or stock option plan or any other management or
employee benefit plan or agreement or any stock subscription or shareholder
agreement, to the extent that such cost or expenses are funded with cash
proceeds contributed to the capital of the Borrower or net cash proceeds of an
issuance of Equity Interests of the Borrower (other than Disqualified Stock)
solely to the extent that such net cash proceeds are excluded from the
calculation set forth in clause (3) of Section 9.5(a) hereof;
plus


 


(k)           an
amount equal to the Borrower’s and its Restricted Subsidiaries’ proportional
share of the items described in clauses (1)(a) and (b) of
this definition relating to each Joint Venture, in each case determined as if
such Joint Venture was a Restricted Subsidiary;


 


(2)           decreased
by (without duplication) non-cash gains increasing Consolidated Net Income of
such Person for such period, excluding any non-cash gains to the extent they
represent the reversal of an accrual or reserve for a potential cash item that
reduced EBITDA in any prior period; and


 


(3)           increased
or decreased by (without duplication):


 


(a)           any
net gain or loss resulting in such period from Hedging Obligations and the
application of Statement of Financial Accounting Standards No. 133 and its
related pronouncements and interpretations; plus or minus, as applicable, and


 


(b)           any
net gain or loss resulting in such period from currency translation gains or
losses related to currency remeasurements of Indebtedness (including any net
loss or gain resulting from Hedging Obligations for currency exchange risk).


 


“EMU” shall mean
the economic and monetary union as contemplated in the Treaty on European
Union.


 


“Engagement Letter”
shall mean the Engagement Letter, dated as of April 1, 2007, among Citigroup
Global Markets Inc., Credit Suisse Securities (USA) LLC, Deutsche Bank
Securities Inc., Goldman, Sachs & Co., HSBC Securities (USA) Inc.,
Lehman Brothers Inc., Merrill Lynch, Pierce, Fenner & Smith
Incorporated and Merger Sub, as amended by the 


 


19

















 


Amendment to Engagement Letter dated as of October 15,
2007, among Citibank, N.A., Citigroup Global Markets Inc., Credit Suisse,
Cayman Islands Branch, Credit Suisse Securities (USA) LLC, Deutsche Bank AG
Cayman Islands Branch, Deutsche Bank Securities Inc., Goldman, Sachs &
Co., Goldman Sachs Credit Partners L.P., HSBC Bank USA, National Association,
HSBC Securities (USA) Inc., Lehman Brothers Commercial Bank, Lehman Commercial
Paper Inc., Lehman Brothers Inc., Merrill Lynch Capital Corporation, Merrill
Lynch, Pierce, Fenner & Smith Incorporated and the Borrower.


 


“Environmental Claims”
shall mean any and all actions, suits, orders, decrees, demands, demand
letters, claims, liens, notices of noncompliance, violation or potential responsibility
or investigation (other than internal reports prepared by the Borrower or any
of the Subsidiaries (a) in the ordinary course of such Person’s business
or (b) as required in connection with a financing transaction or an
acquisition or disposition of real estate) or proceedings relating in any way
to any Environmental Law or any permit issued, or any approval given, under any
such Environmental Law (hereinafter, “Claims”),
including, without limitation, (i) any and all Claims by governmental or
regulatory authorities for enforcement, cleanup, removal, response, remedial or
other actions or damages pursuant to any applicable Environmental Law and (ii) any
and all Claims by any third party seeking damages, contribution,
indemnification, cost recovery, compensation or injunctive relief relating to
the presence, release or threatened release of Hazardous Materials or arising
from alleged injury or threat of injury to health or safety (to the extent
relating to human exposure to Hazardous Materials), or the environment
including, without limitation, ambient air, surface water, groundwater, land
surface and subsurface strata and natural resources such as wetlands.


 


“Environmental Law”
shall mean any applicable Federal, state, foreign or local statute, law, rule,
regulation, ordinance, code and rule of common law now or hereafter in
effect and in each case as amended, and any binding judicial or administrative
interpretation thereof, including any binding judicial or administrative order,
consent decree or judgment, relating to the protection of environment, including,
without limitation, ambient air, surface water, groundwater, land surface and
subsurface strata and natural resources such as wetlands, or human health or
safety (to the extent relating to human exposure to Hazardous Materials), or
Hazardous Materials.


 


“Equity Interests”
shall mean Capital Stock and all warrants, options or other rights to acquire
Capital Stock, but excluding any debt security that is convertible into, or exchangeable
for, Capital Stock.


 


“Equity Investments”
shall have the meaning provided in the preamble to this Agreement.


 


“Equity Offering”
shall mean any public or private sale of common stock or Preferred Stock of the
Borrower or any of its direct or indirect parent companies (excluding Disqualified
Stock), other than:


 


(1)           public
offerings with respect to the Borrower’s or any direct or indirect parent
company’s common stock registered on Form S-8;


 


20

















 


(2)           issuances
to any Subsidiary of the Borrower; and


 


(3)           any
such public or private sale that constitutes an Excluded Contribution.


 


“ERISA” shall
mean the Employee Retirement Income Security Act of 1974, as amended from time
to time.  Section references to
ERISA are to ERISA as in effect at the Original Closing Date and any subsequent
provisions of ERISA amendatory thereof, supplemental thereto or substituted
therefor.


 


“ERISA Affiliate”
shall mean each person (as defined in Section 3(9) of ERISA) that
together with the Borrower would be deemed to be a “single employer” within the
meaning of Section 414(b) or (c) of the Code or, solely for
purposes of Section 302 of ERISA and Section 412 of the Code, is
treated as a single employer under Section 414 of the Code.


 


“euro” shall
mean the single currency of participating member states of the EMU.


 


“Event of Default”
shall have the meaning provided in Section 11.


 


“Exchange Act”
shall mean the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the SEC promulgated thereunder.


 


“Exchange Date”
shall have the meaning provided in Section 2.14(b)(i).


 


“Exchange Notice”
shall have the meaning provided in Section 2.14(b)(ii).


 


“Excluded Contribution”
shall mean net cash proceeds, marketable securities or Qualified Proceeds
received by the Borrower after the Original Closing Date from:


 


(1)           contributions
to its common equity capital, and


 


(2)           the
sale (other than to a Subsidiary of the Borrower or to any management equity
plan or stock option plan or any other management or employee benefit plan or
agreement of the Borrower) of Capital Stock (other than Disqualified Stock and
Designated Preferred Stock) of the Borrower,


 


in each case designated as Excluded
Contributions pursuant to an Officer’s Certificate executed by the principal
financial officer of the Borrower on the date such capital contributions are
made or the date such Equity Interests are sold, as the case may be, which are
excluded from the calculation set forth in clause (3) of Section 9.5(a) hereof.


 


“Excluded Taxes”
shall mean, with respect to any Agent or any Lender, (a)(i) income taxes imposed
on or measured by net income and franchise and excise taxes (imposed in lieu of
net income taxes) imposed on such Agent or Lender, and (ii) any Taxes
imposed on any Agent or any Lender as a result of any current or former
connection between such Agent or Lender and the jurisdiction of the
Governmental Authority imposing such tax or any political subdivision or taxing
authority thereof or therein (other than any such connection arising from such
Agent or Lender having executed, delivered or performed its obligations or
received a payment


 


21

















 


under, or having been a party to or having enforced,
this Agreement or any other Loan Document), and (b) in the case of a
Non-U.S. Lender any U.S. federal withholding tax that is imposed on amounts
payable to such Non-U.S. Lender under the law in effect at the time such
Non-U.S. Lender becomes a party to this Agreement (or, in the case of a
Non-U.S. Participant, on the date such Non-U.S. Participant became a
Participant hereunder); provided that this subclause (b) shall
not apply to the extent that (x) the indemnity payments or additional
amounts any Lender (or Participant) would be entitled to receive (without
regard to this subclause (b)) do not exceed the indemnity payment or
additional amounts that the person making the assignment, participation or
transfer to such Lender (or Participant) would have been entitled to receive in
the absence of such assignment, participation or transfer or (y) any Tax
is imposed on a Lender in connection with an interest or participation in any
Loan or other obligation that such Lender was required to acquire pursuant to Section 13.8(a) or
that such Lender acquired pursuant to Section 13.7 (it being understood
and agreed, for the avoidance of doubt, that any U.S. federal withholding tax
imposed on a Non-U.S. Lender as a result of a Change in Law occurring after the
time such Non-U.S. Lender became a party to this Agreement (or designates a new
lending office) shall not be an Excluded Tax) and (c) any Tax to the
extent attributable to such Lender’s failure to comply with Section 5.4(d) (in
the case of any Non-U.S. Lender) or Section 5.4(c) (in the
case of a U.S. Lender).


 


“Federal Funds Effective
Rate” shall mean, for any day, the weighted average of the per annum rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers on such
day, as published on the next succeeding Business Day by the Federal Reserve
Bank of New York; provided that (a) if such day is not a Business
Day, the Federal Funds Effective Rate for such day shall be such rate on such
transactions on the next preceding Business Day as so published on the next
succeeding Business Day, and (b) if no such rate is so published on such
next succeeding Business Day, the Federal Funds Effective Rate for such day
shall be the average rate charged to the Administrative Agent on such day on
such transactions as determined by the Administrative Agent.


 


“Fee Letter”
shall mean the Fee Letter, dated as of April 1, 2007, among Citigroup
Global Markets Inc., Credit Suisse, Credit Suisse Securities (USA) LLC,
Deutsche Bank AG Cayman Islands Branch, Deutsche Bank Securities Inc., Goldman,
Sachs & Co., Goldman Sachs Credit Partners L.P., HSBC Bank USA,
National Association, HSBC Securities (USA) Inc., Lehman Brothers Inc., Lehman
Brothers Commercial Bank, Lehman Commercial Paper Inc., Merrill Lynch Capital
Corporation and Merger Sub.


 


“Fees” shall
mean all amounts payable pursuant to, or referred to in, Section 4.1.


 


“Fixed Charge Coverage
Ratio” shall mean, with respect to any Person for any period, the
ratio of EBITDA of such Person for such period to the Fixed Charges of such
Person for such period.  In the event
that the Borrower or any Restricted Subsidiary incurs, assumes, guarantees, redeems,
retires or extinguishes any Indebtedness (other than Indebtedness incurred
under any revolving credit facility unless such Indebtedness has been
permanently repaid and has not been replaced) or issues or redeems Disqualified
Stock or Preferred Stock subsequent to the commencement of the period for which
the Fixed Charge Coverage Ratio is being calculated but prior to or
simultaneously with the event for which the calculation of the Fixed Charge
Coverage 


 


22

















 


Ratio is made (the “Fixed Charge
Coverage Ratio Calculation Date”), then the Fixed Charge Coverage
Ratio shall be calculated giving pro forma  effect to such incurrence, assumption,
guarantee, redemption, retirement or extinguishment of Indebtedness, or such
issuance or redemption of Disqualified Stock or Preferred Stock, as if the same
had occurred at the beginning of the applicable four-quarter period.


 


For purposes of making the computation referred to
above, Investments, acquisitions, dispositions, mergers, consolidations and
disposed operations (as determined in accordance with GAAP) that have been made
by the Borrower or any of its Restricted Subsidiaries during the four-quarter
reference period or subsequent to such reference period and on or prior to or
simultaneously with the Fixed Charge Coverage Ratio Calculation Date shall be
calculated on a pro forma  basis assuming that all such Investments,
acquisitions, dispositions, mergers, consolidations and disposed operations
(and the change in any associated fixed charge obligations and the change in
EBITDA resulting therefrom) had occurred on the first day of the four-quarter
reference period.  If, since the beginning
of such period, any Person that subsequently became a Restricted Subsidiary or
was merged with or into the Borrower or any of its Restricted Subsidiaries
since the beginning of such period shall have made any Investment, acquisition,
disposition, merger, consolidation or disposed operation that would have
required adjustment pursuant to this definition, then the Fixed Charge Coverage
Ratio shall be calculated giving pro forma  effect thereto for such period as if such
Investment, acquisition, disposition, merger, consolidation or disposed
operation had occurred at the beginning of the applicable four-quarter period.


 


For purposes of this definition, whenever pro forma  effect is
to be given to a transaction, the pro forma  calculations shall be made in good faith by a
responsible financial or accounting officer of the Borrower (and may include,
for the avoidance of doubt, cost savings and operating expense reductions
resulting from such Investment, acquisition, merger or consolidation which is
being given pro forma effect that have been or are
expected to be realized).  If any
Indebtedness bears a floating rate of interest and is being given pro forma  effect, the
interest on such Indebtedness shall be calculated as if the rate in effect on
the Fixed Charge Coverage Ratio Calculation Date had been the applicable rate
for the entire period (taking into account any Hedging Obligations applicable
to such Indebtedness).  Interest on a
Capitalized Lease Obligation shall be deemed to accrue at an interest rate
reasonably determined by a responsible financial or accounting officer of the
Borrower to be the rate of interest implicit in such Capitalized Lease
Obligation in accordance with GAAP.  For
purposes of making the computation referred to above, interest on any
Indebtedness under a revolving credit facility computed on a pro forma  basis shall
be computed based upon the average daily balance of such Indebtedness during
the applicable period except as set forth in the first paragraph of this
definition.  Interest on Indebtedness
that may optionally be determined at an interest rate based upon a factor of a
prime or similar rate, a eurocurrency interbank offered rate or other rate
shall be deemed to have been based upon the rate actually chosen, or, if none, then
based upon such optional rate chosen as the Borrower may designate.  Any such pro forma
calculation may include adjustments appropriate to exclude from EBITDA the
results of Integrated Payment Systems Inc. and Integrated Payment Systems
Canada Inc.


 


23

















 


“Fixed Charges” shall mean, with respect
to any Person for any period, the sum of:


 


(1)           Consolidated
Interest Expense of such Person for such period;


 


(2)           all
cash dividends or other distributions paid (excluding items eliminated in
consolidation) on any series of Preferred Stock of any Restricted Subsidiary
during such period; and


 


(3)           all
cash dividends or other distributions paid (excluding items eliminated in
consolidation) on any series of Disqualified Stock during such period.


 


“Foreign Plan”
shall mean any employee benefit plan, program, policy, arrangement or agreement
maintained or contributed to by the Borrower or any of its Subsidiaries with
respect to employees employed outside the United States.


 


“Foreign Subsidiary”
shall mean with respect to any Person, any Restricted Subsidiary of such Person
that is not organized or existing under the laws of the United States, any
state thereof or the District of Columbia and any Restricted Subsidiary of such
Foreign Subsidiary.


 


“Fund” shall
mean any Person (other than a natural person) that is (or will be) engaged in
making, purchasing, holding or otherwise investing in commercial loans and
similar extensions of credit in the ordinary course.


 


“GAAP” shall mean
generally accepted accounting principles in the United States which are in
effect on the Original Closing Date.


 


“Governmental Authority”
shall mean any nation, sovereign or government, any state, province, territory
or other political subdivision thereof, and any entity or authority exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government, including a central bank or stock exchange.


 


“Granting Lender”
shall have the meaning provided in Section 13.6(g).


 


“Guarantee”
shall mean (a) the Guarantee made by each Guarantor in favor of the
Administrative Agent for the benefit of the Guaranteed Parties, substantially
in the form of Exhibit A and (b) any other guarantee of the
Obligations made by a Restricted Subsidiary that is a Domestic Subsidiary in
form and substance reasonably acceptable to the Administrative Agent, in each
case as the same may be amended, supplemented or otherwise modified from time
to time.


 


“Guarantee Obligations”
shall mean, as to any Person, any obligation of such Person guaranteeing or
intended to guarantee any Indebtedness of any other Person (the “primary obligor”) in any manner, whether directly or
indirectly, including any obligation of such Person, whether or not contingent,
(a) to purchase any such Indebtedness or any property constituting direct
or indirect security therefor, (b) to advance or supply funds (i) for
the purchase or


 


24
















 


payment of any such Indebtedness or (ii) to
maintain working capital or equity capital of the primary obligor or otherwise
to maintain the net worth or solvency of the primary obligor, (c) to
purchase property, securities or services primarily for the purpose of assuring
the owner of any such Indebtedness of the ability of the primary obligor to
make payment of such Indebtedness or (d) otherwise to assure or hold
harmless the owner of such Indebtedness against loss in respect thereof; provided,
however, that the term “Guarantee Obligations” shall not include endorsements
of instruments for deposit or collection in the ordinary course of business or
customary and reasonable indemnity obligations in effect on the Original
Closing Date or entered into in connection with any acquisition or disposition
of assets permitted under this Agreement (other than such obligations with
respect to Indebtedness).  The amount of
any Guarantee Obligation shall be deemed to be an amount equal to the stated or
determinable amount of the Indebtedness in respect of which such Guarantee
Obligation is made or, if not stated or determinable, the maximum reasonably
anticipated liability in respect thereof (assuming such Person is required to
perform thereunder) as determined by such Person in good faith.


 


“Guaranteed Parties”
shall mean the Administrative Agent, any other Agent and each Lender, in each
case, with respect to the Obligations or any Guarantee, and each sub-agent
appointed by the Administrative Agent pursuant to Section 13 with
respect to matters relating to the Obligations.


 


“Guarantors”
shall mean each Restricted Subsidiary that provides a Guarantee hereunder pursuant
to Section 9.13 or otherwise.


 


“Hazardous Materials”
shall mean (a) any petroleum or petroleum products, radioactive materials,
friable asbestos, urea formaldehyde foam insulation, transformers or other
equipment that contain dielectric fluid containing regulated levels of
polychlorinated biphenyls, and radon gas; (b) any chemicals, materials or
substances defined as or included in the definition of “hazardous substances”, “hazardous
waste”, “hazardous materials”, “extremely hazardous waste”, “restricted
hazardous waste”, “toxic substances”, “toxic pollutants”, “contaminants”, or “pollutants”,
or words of similar import, under any applicable Environmental Law; and (c) any
other chemical, material or substance, which is prohibited, limited or
regulated by any Environmental Law.


 


“Hedging Obligations”
shall mean, with respect to any Person, the obligations of such Person under
any interest rate swap agreement, interest rate cap agreement, interest rate collar
agreement, commodity swap agreement, commodity cap agreement, commodity collar
agreement, foreign exchange contract, currency swap agreement or similar agreement
providing for the transfer or mitigation of interest rate or currency risks
either generally or under specific contingencies.


 


“Historical Financial
Statements” shall mean the audited consolidated balance sheets of
the Borrower as of December 31, 2006 and December 31, 2005 and the
audited consolidated statements of income, stockholders’ equity and cash flows
of the Borrower for each of the fiscal years in the three year period ending on
December 31, 2006.


 


25

















 


“Holdco Indenture”
shall mean the indenture dated as of the Original Closing Date entered into
between Holdings and The Bank of New York, as trustee, relating to the Holdco
Notes.


 


“Holdco Notes”
shall mean the $1,000,000,000 aggregate principal amount of 111⁄2% Senior PIK
Notes due 2016 issued by Holdings on the Original Closing Date.


 


“Holdings” shall
mean New Omaha Holdings Corporation, a Delaware corporation, and its successors.


 


“Indebtedness” shall mean, with respect to any Person,
without duplication:


 


(1)                                  any
indebtedness (including principal and premium) of such Person, whether or not
contingent:


 


(a)                                  in respect of
borrowed money;


 


(b)                                 evidenced by bonds,
notes, debentures or similar instruments or letters of credit or bankers’
acceptances (or, without duplication, reimbursement agreements in respect
thereof);


 


(c)                                  representing the
balance deferred and unpaid of the purchase price of any property (including
Capitalized Lease Obligations), except (i) any such balance that
constitutes an obligation in respect of a commercial letter of credit, a trade
payable or similar obligation to a trade creditor, in each case accrued in the
ordinary course of business and (ii) any earn-out obligations until such
obligation, within 60 days of becoming due and payable, has not been paid and
becomes a liability on the balance sheet of such Person in accordance with
GAAP; or


 


(d)                                 representing any
Hedging Obligations;


 


if and to the
extent that any of the foregoing Indebtedness (other than letters of credit and
Hedging Obligations) would appear as a liability upon a balance sheet (excluding
the footnotes thereto) of such Person prepared in accordance with GAAP;


 


(2)                                  to
the extent not otherwise included, any obligation by such Person to be liable
for, or to pay, as obligor, guarantor or otherwise on, the obligations of the
type referred to in clause (1) of a third Person (whether or not
such items would appear upon the balance sheet of the such obligor or
guarantor), other than by endorsement of negotiable instruments for collection
in the ordinary course of business; provided that the amount of
Indebtedness of any Person for purposes of this clause (2) shall be
deemed to be equal to the lesser of (i) the aggregate unpaid amount of
such Indebtedness and (ii) the fair market value of the property
encumbered thereby as determined by such Person in good faith; and


 


26

















 


(3)                                  to
the extent not otherwise included, the obligations of the type referred to in clause
(1) of a third Person secured by a Lien on any asset owned by such
first Person, whether or not such Indebtedness is assumed by such first Person;


 


provided,
however, that notwithstanding the foregoing, Indebtedness shall be
deemed not to include (a) Contingent Obligations incurred in the ordinary
course of business, (b) obligations under or in respect of Receivables
Facilities or (c) Settlement Indebtedness.


 


“indemnified liabilities”
shall have the meaning provided in Section 13.5.


 


“Indemnified Taxes”
shall mean all Taxes (including Other Taxes) other than (i) Excluded Taxes
and (ii) any interest, penalties or expenses caused by an Agent’s or
Lender’s gross negligence or willful misconduct.


 


“Indentures”
shall mean the Senior Refinancing Indenture and/or the Senior Subordinated Refinancing
Indenture, as the context requires.


 


“Independent Financial
Advisor” shall mean an accounting, appraisal, investment banking
firm or consultant to Persons engaged in Similar Businesses of nationally recognized
standing that is, in the good faith judgment of the Borrower, qualified to
perform the task for which it has been engaged.


 


“Insolvency or Liquidation
Proceeding” shall mean:


 


(a)                                  any
voluntary or involuntary case or proceeding under the Bankruptcy Code with
respect to any Loan Party;


 


(b)                                 any
other voluntary insolvency, reorganization or bankruptcy case or proceeding, or
any receivership, liquidation, reorganization or other similar case or proceeding
with respect to any Loan Party or with respect to a material portion of their
respective assets;


 


(c)                                  any
liquidation, dissolution, reorganization or winding-up of any Loan Party
whether voluntary or involuntary and whether or not involving insolvency or bankruptcy;
or


 


(d)                                 any
assignment for the benefit of creditors or any other marshalling of assets and
liabilities of any Loan Party.


 


“Interest Period”
shall mean, with respect to any Loan, the interest period applicable thereto,
as determined pursuant to Section 2.9.


 


“Interim Loan Conversion
Date” shall mean September 24, 2008 or, if such date is not a
Business Day, the next succeeding Business Day.


 


27

















 


“Investment Grade Rating”
shall mean a rating equal to or higher than Baa3 (or the equivalent) by Moody’s
and BBB (or the equivalent) by S&P, or an equivalent rating by any other
Rating Agency.


 


“Investment Grade Securities” shall mean:


 


(1)                                  securities
issued or directly and fully guaranteed or insured by the United States
government or any agency or instrumentality thereof (other than Cash Equivalents);


 


(2)                                  debt
securities or debt instruments with an Investment Grade Rating, but excluding
any debt securities or instruments constituting loans or advances among the
Borrower and its Subsidiaries;


 


(3)                                  investments
in any fund that invests exclusively in investments of the type described in clauses
(1) and (2) which fund may also hold immaterial amounts of
cash pending investment or distribution; and


 


(4)                                  corresponding
instruments in countries other than the United States customarily utilized for
high quality investments.


 


“Investments”
shall mean, with respect to any Person, all investments by such Person in other
Persons (including Affiliates) in the form of loans (including guarantees), advances
or capital contributions (excluding accounts receivable, trade credit, advances
to customers, commissions, travel and similar advances to officers and
employees, in each case made in the ordinary course of business), purchases or
other acquisitions for consideration of Indebtedness, Equity Interests or other
securities issued by any other Person and investments that are required by GAAP
to be classified on the balance sheet (excluding the footnotes) of the Borrower
in the same manner as the other investments included in this definition to the
extent such transactions involve the transfer of cash or other property.  For purposes of the definition of “Unrestricted
Subsidiary” and Section 9.5 hereof:


 


(1)                                  “Investments”
shall include the portion (proportionate to the Borrower’s equity interest in
such Subsidiary) of the fair market value of the net assets of a Subsidiary of
the Borrower at the time that such Subsidiary is designated an Unrestricted Subsidiary;
provided, however, that upon a redesignation of such Subsidiary
as a Restricted Subsidiary, the Borrower shall be deemed to continue to have a
permanent “Investment” in an Unrestricted Subsidiary in an amount (if positive)
equal to:


 


(a)                                  the Borrower’s “Investment”
in such Subsidiary at the time of such redesignation; less


 


(b)                                 the portion
(proportionate to the Borrower’s equity interest in such Subsidiary) of the
fair market value of the net assets of such Subsidiary at the time of such
redesignation; and


 


28

















 


(2)                                  any
property transferred to or from an Unrestricted Subsidiary shall be valued at
its fair market value at the time of such transfer, in each case fair market
value as determined in good faith by the Borrower.


 


“Investors”
shall mean Kohlberg Kravis Roberts & Co. L.P., KKR 2006 Fund L.P.,
Citigroup Global Markets Inc., Credit Suisse Management LLC, Deutsche Bank
Investment Partners, Inc., HSBC Bank plc, LB I Group Inc., GMI Investments, Inc.,
Citigroup Capital Partners II 2007, Citigroup Investment, L.P., Citigroup
Capital Partners II Employee Master Fund, L.P., Citigroup Capital Partners II
Onshore, L.P., Citigroup Capital Partners II Cayman Holdings, L.P., CGI CPE
LLC, GS Capital Partners VI Parallel, L.P., GS Capital Partners VI GmbH &
Co. KG, GS Capital Partners VI Fund, L.P., GS Capital Partners VI Offshore
Fund, L.P., GS Mezzanine Partners 2006 Fund, L.P. and Goldman Sachs Investments
Ltd. and each of their respective Affiliates but not including, however, any
portfolio companies of any of the foregoing.


 


“Joint Lead Arrangers and
Bookrunners” shall mean Citigroup Global Markets Inc., Credit Suisse
Securities (USA) LLC, Deutsche Bank Securities Inc., Goldman Sachs Credit
Partners L.P., HSBC Securities (USA) Inc., Lehman Brothers Inc. and Merrill
Lynch, Pierce, Fenner & Smith Incorporated.


 


“Joint Venture”
shall mean, at any date of determination, each joint venture accounted for as
an equity method investee of the Borrower or its Restricted Subsidiaries, determined
in accordance with GAAP.


 


“Judgment Currency”
shall have the meaning provided in Section 13.19.


 


“Lender” shall
have the meaning provided in the preamble to this Agreement.


 


“Lender Default”
shall mean (a) the failure (which has not been cured) of a Lender to make
available its portion of any Borrowing or (b) a Lender having notified the
Administrative Agent and/or the Borrower that it does not intend to comply with
the obligations under Section 2.1(a), or (c) a Lender becoming
the subject of a bankruptcy or insolvency proceeding.


 


“LIBOR Loan”
shall mean any Loan bearing interest at a rate determined by reference to the
LIBOR Rate.


 


“LIBOR Rate”
shall mean, for any Interest Period with respect to a LIBOR Loan in Dollars,
the rate per annum equal to the British Bankers
Association LIBOR Rate (“BBA LIBOR”), as
published by Bloomberg (or other commercially available source providing quotations
of BBA LIBOR as designated by the Administrative Agent from time to time) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, for deposits in Dollars (for delivery on
the first day of such Interest Period) with a term equivalent to such Interest
Period.  If such rate is not available at
such time for any reason, then the “LIBOR Rate” for such Interest Period shall
be the rate per annum determined by the Administrative
Agent to be the rate at which deposits in Dollars for delivery on the first day
of such Interest Period in same day funds in the approximate amount of the
LIBOR Loan being made, continued or converted by the Administrative Agent and
with a term equivalent to such Interest Period 


 


29

















 


would be offered by the Administrative Agent’s
London Branch to major banks in the applicable London interbank eurocurrency
market at their request at approximately 11:00 a.m. (London time) two
Business Days prior to the commencement of such Interest Period.


 


“Lien” shall
mean, with respect to any asset, any mortgage, lien (statutory or otherwise),
pledge, hypothecation, charge, security interest, preference, priority or
encumbrance of any kind in respect of such asset, whether or not filed,
recorded or otherwise perfected under applicable law, including any conditional
sale or other title retention agreement, any lease in the nature thereof, any
option or other agreement to sell or give a security interest in and any filing
of or agreement to give any financing statement under the Uniform Commercial
Code (or equivalent statutes) of any jurisdiction; provided that in no
event shall an operating lease be deemed to constitute a Lien.


 


“Loan” shall
mean any Senior Interim Loan or Senior Term Loan made by any Lender hereunder
and any Loan made as a result of the accrual of PIK Interest.


 


“Loan Documents”
shall mean this Agreement (including the Original Senior Unsecured Loan
Agreement), the Guarantees and any promissory notes issued by the Borrower hereunder.


 


“Loan Party”
shall mean the Borrower, the Guarantors and each other Subsidiary of the Borrower
that is a party to a Loan Document.


 


“Material Adverse Effect”
shall mean a circumstance or condition affecting the business, assets,
operations, properties or financial condition of the Borrower and the Subsidiaries,
taken as a whole, that would, individually or in the aggregate, materially
adversely affect (a) the ability of the Borrower and the other Loan
Parties, taken as a whole, to perform their payment obligations under this
Agreement or any of the other Loan Documents or (b) the rights and
remedies of the Administrative Agent and the Lenders under this Agreement or
any of the other Loan Documents.


 


“Material Subsidiary”
shall mean, at any date of determination, (i) each Restricted Subsidiary
of the Borrower (a) whose total assets at the last day of the Test Period
ending on the last day of the most recent fiscal period for which Section 9.1
Financials have been delivered were equal to or greater than 5% of the
Consolidated Total Assets of the Borrower and the Restricted Subsidiaries at
such date or (b) whose revenues during such Test Period were equal to or
greater than 5% of the consolidated revenues of the Borrower and the Restricted
Subsidiaries for such period, in each case determined in accordance with GAAP; provided
that if, at any time and from time to time after the Original Closing Date,
Restricted Subsidiaries that are not Material Subsidiaries have, in the
aggregate, (x) total assets at the last day of such Test Period equal to
or greater than 10% of the Consolidated Total Assets of the Borrower and the Restricted
Subsidiaries at such date or (y) revenues during such Test Period equal to
or greater than 10% of the consolidated revenues of the Borrower and the
Restricted Subsidiaries for such period, in each case determined in accordance
with GAAP, then the Borrower shall, on the date on which financial statements
for such quarter are delivered pursuant to this Agreement, designate 


 


30

















 


in writing to the Administrative Agent one or
more of such Restricted Subsidiaries as “Material Subsidiaries.”


 


“Maturity Date”
shall mean (a) if the Loans have not been converted to Senior Term Loans, September 24,
2008 or, if such date is not a Business Day, the next succeeding Business Day,
or (b) if the Loans have been converted to Senior Term Loans, September 24,
2015 or, if such date is not a Business Day, the next succeeding Business Day
(with respect to clause (b) only, the “Term Loan
Maturity Date”).


 


“Merchant Acquisition and
Processing Alliance” shall mean any joint venture or other strategic
alliance entered into with any financial institution or other third party
primarily entered into to offer Merchant Services.


 


“Merchant Agreement”
shall mean any contract entered into with a merchant relating to the provision
of Merchant Services.


 


“Merchant Services”
shall mean services provided to merchants relating to the authorization,
transaction capture, settlement, chargeback handling and internet-based transaction
processing of credit, debit, stored-value and loyalty card and other payment
transactions (including provision of point of service devices and other
equipment necessary to capture merchant transactions and other ancillary
services).


 


“Merger” shall
have the meaning provided in the preamble to this Agreement.


 


“Merger Sub”
shall mean Omaha Acquisition Corporation, a Delaware corporation.


 


“Minimum Borrowing Amount”
shall mean (a) with respect to a Borrowing of LIBOR Loans, $5,000,000 and (b) with
respect to a Borrowing of ABR Loans, $1,000,000.


 


“Minimum Equity Amount”
shall have the meaning provided in the preamble to this Agreement.


 


“Moody’s” shall
mean Moody’s Investors Service, Inc. and any successor to its rating
agency business.


 


“Multiemployer Plan”
shall mean a Plan that is a multiemployer plan as defined in Section 4001(a)(3) of
ERISA.


 


“Net Asset Sale Proceeds”
shall mean the aggregate cash proceeds received by the Borrower or any of its
Restricted Subsidiaries in respect of any Asset Sale, including any cash
received upon the sale or other disposition of any Designated Non-cash
Consideration received in any Asset Sale, net of the direct costs relating to
such Asset Sale and the sale or disposition of such Designated Non-cash
Consideration, including legal, accounting and investment banking fees, and
brokerage and sales commissions, any relocation expenses incurred as a result
thereof, taxes paid or payable as a result thereof (after taking into account
any available tax credits or deductions and any tax sharing arrangements),
amounts required to be applied to the 


 


31

















 


repayment of principal, premium, if any, and
interest on Senior Indebtedness required (other than required by clause (1) of
Section 9.8(b) hereof) to be paid as a result of such
transaction and any deduction of appropriate amounts to be provided by the
Borrower or any of its Restricted Subsidiaries as a reserve in accordance with
GAAP against any liabilities associated with the asset disposed of in such transaction
and retained by the Borrower or any of its Restricted Subsidiaries after such
sale or other disposition thereof, including pension and other post-employment
benefit liabilities and liabilities related to environmental matters or against
any indemnification obligations associated with such transaction.


 


“Net Cash Proceeds”
shall mean, with respect to any Prepayment Event, (a) the gross cash proceeds
(including payments from time to time in respect of installment obligations, if
applicable) received by or on behalf of the Borrower or any of the Restricted
Subsidiaries in respect of such Prepayment Event, as the case may be, less (b) the
sum of:


 


(i)                                     the
amount, if any, of all taxes paid or estimated to be payable by the Borrower or
any of the Restricted Subsidiaries in connection with such Prepayment Event,


 


(ii)                                  the
amount of any reasonable reserve established in accordance with GAAP against
any liabilities (other than any taxes deducted pursuant to clause (i) above)
(x) associated with the assets that are the subject of such Prepayment
Event and (y) retained by the Borrower or any of the Restricted
Subsidiaries, provided that the amount of any subsequent reduction of
such reserve (other than in connection with a payment in respect of any such
liability) shall be deemed to be Net Cash Proceeds of such a Prepayment Event
occurring on the date of such reduction,


 


  (iii)                             the
amount of any Indebtedness secured by a Lien on the assets that are the subject
of such Prepayment Event to the extent that the instrument creating or evidencing
such Indebtedness requires that such Indebtedness be repaid upon consummation
of such Prepayment Event, and


 


 (iv)                             reasonable
and customary fees paid by the Borrower or a Restricted Subsidiary in
connection with any of the foregoing,


 


in each case only to the extent
not already deducted in arriving at the amount referred to in clause (a) above.


 


“Net Income”
shall mean, with respect to any Person, the net income (loss) of such Person,
determined in accordance with GAAP and before any reduction in respect of Preferred
Stock dividends.


 


“Non-Consenting Lender”
shall have the meaning provided in Section 13.7(b).


 


“Non-Defaulting Lender”
shall mean and include each Lender other than a Defaulting Lender.


 


“Non-U.S. Lender”
shall mean any Agent or Lender that is not, for United States federal income
tax purposes, (a) an individual who is a citizen or resident of the United
States, 


 


32

















 


(b) a corporation, partnership or entity
treated as a corporation or partnership created or organized in or under the
laws of the United States, or any political subdivision thereof, (c) an
estate whose income is subject to U.S. federal income taxation regardless of
its source or (d) a trust if a court within the United States is able to
exercise primary supervision over the administration of such trust and one or
more United States persons have the authority to control all substantial decisions
of such trust or a trust that has a valid election in effect under applicable
U.S. Treasury regulations to be treated as a United States person.


 


“Non-U.S. Participant”
shall mean any Participant that if it were a Lender would qualify as a Non-U.S.
Lender.


 


“Notice of Borrowing”
shall have the meaning provided in Section 2.3(a).


 


“Notice of Conversion or
Continuation” shall have the meaning provided in Section 2.6(a).


 


“Obligations”
shall mean any principal, interest (including any interest accruing subsequent
to the filing of a petition in bankruptcy, reorganization or similar proceeding
at the rate provided for in the documentation with respect thereto, whether or
not such interest is an allowed claim under applicable state, federal or
foreign law), premium, penalties, fees, indemnifications, reimbursements
(including reimbursement obligations with respect to letters of credit and
bankers’ acceptances), damages and other liabilities, and guarantees of payment
of such principal, interest, penalties, fees, indemnifications, reimbursements,
damages and other liabilities, payable under the documentation governing any
Indebtedness.


 


“Officer” shall
mean the Chairman of the Board, the Chief Executive Officer, the President, any
Executive Vice President, Senior Vice President or Vice President, the
Treasurer or the Secretary of the Borrower or a Guarantor, as applicable.


 


“Officer’s Certificate”
shall mean a certificate signed on behalf of the Borrower by an Officer of the
Borrower or on behalf of a Guarantor by an Officer of such Guarantor, who must
be the principal executive officer, the principal financial officer, the
treasurer or the principal accounting officer of the Borrower, that meets the requirements
set forth in this Agreement.


 


“Opinion of Counsel”
shall mean a written opinion from legal counsel who is acceptable to the
Administrative Agent.  The counsel may be
an employee of or counsel to the Borrower or the Administrative Agent.


 


“Optional Principal
Redemption” shall have the meaning provided in Section 5.1(b).


 


“Optional Principal
Redemption Amount” shall have the meaning provided in Section 5.1(b).


 


“Original Closing Date”
shall mean September 24, 2007, the date of the initial extensions of
credit under the Original Senior Unsecured Loan Agreement.


 


33

















 


“Original Lenders”
shall have the meaning assigned to such term in the recitals hereto.


 


“Original Senior Unsecured
Loan Agreement” shall have the meaning assigned to such term in the
recitals hereto.


 


“Other Taxes”
shall mean any and all present or future stamp, registration, documentary or
any other excise, property or similar taxes (including interest, fines,
penalties, additions to tax and related expenses with regard thereto) arising
from any payment made or required to be made under this Agreement or any other
Loan Document or from the execution or delivery of, registration or enforcement
of, consummation or administration of, or otherwise with respect to, this
Agreement or any other Loan Document.


 


“Overnight Rate”
shall mean, for any day the greater of (i) the Federal Funds Effective
Rate and (ii) an overnight rate determined by the Administrative Agent, as
the case may be, in accordance with banking industry rules on interbank
compensation.


 


“Participant”
shall have the meaning provided in Section 13.6(c).


 


“Patriot Act”
shall have the meaning provided in Section 13.18.


 


“Pension Act”
shall mean the Pension Protection Act of 2006, as it presently exists or as it
may be amended from time to time.


 


“Permitted Asset Swap”
shall mean the concurrent purchase and sale or exchange of Related Business
Assets or a combination of Related Business Assets and cash or Cash Equivalents
between the Borrower or any of its Restricted Subsidiaries and another Person; provided
that any cash or Cash Equivalents received must be applied in accordance with Section 9.8
hereof.


 


“Permitted Holders”
shall mean each of the Investors, members of management of the Borrower (or its
direct or indirect parent) and any group (within the meaning of Section 13(d)(3) or
Section 14(d)(2) of the Exchange Act or any successor provision) of
which any of the foregoing are members; provided that, in the case of
such group and without giving effect to the existence of such group or any
other group, such Investors, and members of management, collectively, have
beneficial ownership of more than 50% of the total voting power of the Voting
Stock of the Borrower or any of its direct or indirect parent companies.  Any Person or group whose acquisition of
beneficial ownership constitutes a Change of Control in respect of which a
Change of Control Offer is made in accordance with the requirements of this
Agreement will thereafter, together with its Affiliates, constitute an
additional Permitted Holder.


 


“Permitted Investments” shall mean:


 


(1)                                  any
Investment in the Borrower or any of its Restricted Subsidiaries;


 


(2)                                  any
Investment in cash and Cash Equivalents or Investment Grade Securities;


 


34

















 


(3)                                  any
Investment by the Borrower or any of its Restricted Subsidiaries in a Person
that is engaged in a Similar Business if as a result of such Investment:


 


(a)                                  such Person becomes a
Restricted Subsidiary; or


 


(b)                                 such Person, in one
transaction or a series of related transactions, is merged or consolidated with
or into, or transfers or conveys substantially all of its assets to, or is
liquidated into, the Borrower or a Restricted Subsidiary,


 


and, in each
case, any Investment held by such Person; provided that such Investment
was not acquired by such Person in contemplation of such acquisition, merger,
consolidation or transfer;


 


(4)                                  any
Investment in securities or other assets not constituting cash, Cash
Equivalents or Investment Grade Securities and received in connection with an
Asset Sale made pursuant to the provisions described under Section 9.8
hereof or any other disposition of assets not constituting an Asset Sale;


 


(5)                                  any
Investment existing on the Original Closing Date or made pursuant to a binding
commitment as in effect on the Original Closing Date;


 


(6)                                  any
Investment acquired by the Borrower or any of its Restricted Subsidiaries:


 


(a)                                  in exchange for any
other Investment or accounts receivable held by the Borrower or any such
Restricted Subsidiary in connection with or as a result of a bankruptcy,
workout, reorganization or recapitalization of the issuer of such other
Investment or accounts receivable; or


 


(b)                                 as a result of a
foreclosure by the Borrower or any of its Restricted Subsidiaries with respect
to any secured Investment or other transfer of title with respect to any secured
Investment in default;


 


(7)                                  Hedging
Obligations permitted under clause (10) of Section 9.7(b) hereof;


 


(8)                                  any
Investment in a Similar Business having an aggregate fair market value, taken
together with all other Investments made pursuant to this clause (8) that
are at that time outstanding, not to exceed 2.5% of the Borrower’s Total Assets
at the time of such Investment (with the fair market value of each Investment
being measured at the time made and without giving effect to subsequent changes
in value);


 


(9)                                  Investments
the payment for which consists of Equity Interests (exclusive of Disqualified
Stock) of the Borrower or any of its direct or indirect parent companies; provided,
however, that such Equity Interests will not increase the amount
available for Restricted Payments under clause (3) of Section 9.5(a) hereof;


 


(10)                            guarantees
of Indebtedness permitted under Section 9.7 hereof;


 


35

















 


(11)                            any
transaction to the extent it constitutes an Investment that is permitted and
made in accordance with the provisions of Section 9.9(b) hereof
(except transactions described in clauses (2), (5) and (9) of
Section 9.9(b) hereof);


 


(12)                            Investments
consisting of purchases and acquisitions of inventory, supplies, material or
equipment;


 


(13)                            additional
Investments having an aggregate fair market value, taken together with all
other Investments made pursuant to this clause (13) that are at that
time outstanding (without giving effect to the sale of an Unrestricted
Subsidiary to the extent the proceeds of such sale do not consist of cash or
marketable securities), not to exceed 3.5% of the Borrower’s Total Assets at
the time of such Investment (with the fair market value of each Investment
being measured at the time made and without giving effect to subsequent changes
in value);


 


(14)                            Investments
relating to a Receivables Subsidiary that, in the good faith determination of
the Borrower, is necessary or advisable to effect any Receivables Facility;


 


(15)                            advances
to, or guarantees of Indebtedness of, employees not in excess of $50.0 million
outstanding at any one time, in the aggregate;


 


(16)                            loans
and advances to officers, directors and employees for business-related travel
expenses, moving expenses and other similar expenses, in each case incurred in
the ordinary course of business or consistent with past practices or to fund
such Person’s purchase of Equity Interests of the Borrower or any direct or
indirect parent company thereof;


 


(17)                            any
Investment in any joint venture existing on the Original Closing Date to the
extent contemplated by the organizational documents of such joint venture as in
existence on the Original Closing Date;


 


(18)                            any
Investment in any Subsidiary or any joint venture in connection with
intercompany cash management arrangements or related activities arising in the
ordinary course of business;


 


(19)                            any
Investment arising in the ordinary course of business as a result of any
Settlement, including Investments in and of Settlement Assets; and


 


(20)                            Investments
of assets made pursuant to any non-qualified deferred compensation plan
sponsored by the Borrower or its Restricted Subsidiaries.


 


“Permitted Liens”
shall mean, with respect to any Person:


 


(1)                                  pledges
or deposits by such Person under workmen’s compensation laws, unemployment
insurance laws or similar legislation, or good faith deposits in connection
with bids, tenders, contracts (other than for the payment of Indebtedness) or
leases to which such Person is a party, or deposits to secure public or
statutory obligations of such


 


36
















 


Person or deposits of cash or
U.S. government bonds to secure surety or appeal bonds to which such Person is
a party, or deposits as security for contested taxes or import duties or for
the payment of rent, in each case incurred in the ordinary course of business;


 


(2)           Liens imposed by law, such as carriers’, warehousemen’s
and mechanics’ Liens, in each case for sums not yet overdue for a period of
more than 30 days or being contested in good faith by appropriate proceedings
or other Liens arising out of judgments or awards against such Person with
respect to which such Person shall then be proceeding with an appeal or other
proceedings for review if adequate reserves with respect thereto are maintained
on the books of such Person in accordance with GAAP;


 


(3)           Liens for taxes, assessments or other governmental charges
not yet overdue for a period of more than 30 days or payable or subject to
penalties for nonpayment or which are being contested in good faith by
appropriate proceedings diligently conducted, if adequate reserves with respect
thereto are maintained on the books of such Person in accordance with GAAP;


 


(4)           Liens in favor of issuers of performance and surety bonds
or bid bonds or with respect to other regulatory requirements or letters of
credit issued pursuant to the request of and for the account of such Person in
the ordinary course of its business;


 


(5)           minor survey exceptions, minor encumbrances, easements or
reservations of, or rights of others for, licenses, rights-of-way, sewers,
electric lines, telegraph and telephone lines and other similar purposes, or
zoning or other restrictions as to the use of real properties or Liens
incidental to the conduct of the business of such Person or to the ownership of
its properties which were not incurred in connection with Indebtedness and
which do not in the aggregate materially adversely affect the value of said
properties or materially impair their use in the operation of the business of
such Person;


 


(6)           Liens securing Indebtedness permitted to be incurred
pursuant to clause (1), (4), (12), (13), (18)
or (19) of Section 9.7(b) hereof; provided that (a) Liens
securing Indebtedness, Disqualified Stock or Preferred Stock permitted to be
incurred pursuant to clause (13) relate only to Refinancing Indebtedness
that serves to refund or refinance Indebtedness, Disqualified Stock or
Preferred Stock incurred under clause (4) or (12) of Section 9.7(b) hereof,
(b) Liens securing Indebtedness permitted to be incurred pursuant to clause
(18) extend only to the assets of Foreign Subsidiaries, (c) Liens securing
Indebtedness permitted to be incurred pursuant to clause (19) are solely
on acquired property or the assets of the acquired entity, as the case may be
and (d) Liens securing Indebtedness, Disqualified Stock or Preferred Stock
permitted to be incurred pursuant to clause (4) of Section 9.7(b) hereof
extend only to the assets so financed, purchased, constructed or improved;


 


(7)           Liens existing on the Original Closing Date (other than
Liens in favor of the lenders under the Senior Secured Credit Agreement);


 


37

















 


(8)           Liens on property or shares of stock of a Person at the
time such Person becomes a Subsidiary; provided, however, such
Liens are not created or incurred in connection with, or in contemplation of,
such other Person becoming such a Subsidiary; provided, further, however,
that such Liens may not extend to any other property owned by the Borrower or
any of its Restricted Subsidiaries;


 


(9)           Liens on property at the time the Borrower or a Restricted
Subsidiary acquired the property, including any acquisition by means of a
merger or consolidation with or into the Borrower or any of its Restricted
Subsidiaries; provided, however, that such Liens are not created
or incurred in connection with, or in contemplation of, such acquisition; provided,
further, however, that the Liens may not extend to any other
property owned by the Borrower or any of its Restricted Subsidiaries;


 


(10)         Liens securing Indebtedness or other obligations of a
Restricted Subsidiary owing to the Borrower or another Restricted Subsidiary
permitted to be incurred in accordance with Section 9.7 hereof;


 


(11)         Liens securing Hedging Obligations so long as the related
Indebtedness is, and is permitted to be under this Agreement, secured by a Lien
on the same property securing such Hedging Obligations;


 


(12)         Liens on specific items of inventory or other goods and
proceeds of any Person securing such Person’s obligations in respect of bankers’
acceptances issued or created for the account of such Person to facilitate the
purchase, shipment or storage of such inventory or other goods;


 


(13)         leases, subleases, licenses or sublicenses granted to others
in the ordinary course of business which do not materially interfere with the
ordinary conduct of the business of the Borrower or any of its Restricted
Subsidiaries and do not secure any Indebtedness;


 


(14)         Liens arising from Uniform Commercial Code financing
statement filings regarding operating leases entered into by the Borrower and
its Restricted Subsidiaries in the ordinary course of business;


 


(15)         Liens in favor of the Borrower or any Guarantor;


 


(16)         Liens on equipment of the Borrower or any of its Restricted
Subsidiaries granted in the ordinary course of business;


 


(17)         Liens on accounts receivable and related assets incurred in
connection with a Receivables Facility;


 


(18)         Liens to secure any refinancing, refunding, extension,
renewal or replacement (or successive refinancings, refundings, extensions, renewals
or replacements), as a whole or in part, of any Indebtedness secured by any
Lien referred to in the foregoing clauses (6), (7), (8) and
(9); provided, however, that (a) such new Lien shall
be limited to 


 


38

















 


all or part of
the same property that secured the original Lien (plus improvements on such
property), and (b) the Indebtedness secured by such Lien at such time is
not increased to any amount greater than the sum of (i) the outstanding
principal amount or, if greater, committed amount of the Indebtedness described
under the foregoing clauses (6), (7), (8) and (9) at
the time the original Lien became a Permitted Lien under this Agreement, and (ii) an
amount necessary to pay any fees and expenses, including premiums, related to
such refinancing, refunding, extension, renewal or replacement;


 


(19)         deposits made in the ordinary course of business to secure
liability to insurance carriers;


 


(20)         other Liens securing obligations incurred in the ordinary course
of business which obligations do not exceed $100.0 million at any one time
outstanding;


 


(21)         Liens securing judgments for the payment of money not
constituting an Event of Default under clause (f) under Section 11.1(I) hereof
so long as such Liens are adequately bonded and any appropriate legal
proceedings that may have been duly initiated for the review of such judgment
have not been finally terminated or the period within which such proceedings
may be initiated has not expired;


 


(22)         Liens in favor of customs and revenue authorities arising as
a matter of law to secure payment of customs duties in connection with the
importation of goods in the ordinary course of business;


 


(23)         Liens (i) of a collection bank arising under Section 4-210
of the Uniform Commercial Code, or any comparable or successor provision, on
items in the course of collection, (ii) attaching to commodity trading
accounts or other commodity brokerage accounts incurred in the ordinary course
of business, and (iii) in favor of banking institutions arising as a
matter of law encumbering deposits (including the right of set-off) and which
are within the general parameters customary in the banking industry;


 


(24)         Liens deemed to exist in connection with Investments in
repurchase agreements permitted under Section 9.7 hereof; provided
that such Liens do not extend to any assets other than those that are the
subject of such repurchase agreements;


 


(25)         Liens encumbering reasonable customary initial deposits and
margin deposits and similar Liens attaching to commodity trading accounts or
other brokerage accounts incurred in the ordinary course of business and not
for speculative purposes;


 


(26)         Liens that are contractual rights of set-off (i) relating
to the establishment of depository relations with banks not given in connection
with the issuance of Indebtedness, (ii) relating to pooled deposit or
sweep accounts of the Borrower or any of its Restricted Subsidiaries to permit
satisfaction of overdraft or similar obligations incurred in the ordinary
course of business of the Borrower and its Restricted Subsidiaries or (iii) relating
to purchase orders and other agreements entered into with customers of the Borrower
or any of its Restricted Subsidiaries in the ordinary course of business;


 


39

















 


(27)         Liens arising out of conditional sale, title retention,
consignment or similar arrangements for the sale or purchase of goods entered
into by the Borrower or any Restricted Subsidiary in the ordinary course of
business; and


 


(28)         Settlement Liens.


 


For purposes of this definition, the term “Indebtedness”
shall be deemed to include interest on such Indebtedness.


 


“Person” shall
mean any individual, corporation, limited liability company, partnership, joint
venture, association, joint stock company, trust, unincorporated organization,
government or any agency or political subdivision thereof or any other entity.


 


“PIK Interest”
shall have the meaning provided in Section 2.8(a)(ii).


 


“PIK Interest Amount”
shall mean the aggregate principal amount of all increases in outstanding
principal amount of PIK Notes (as defined in the Senior Refinancing Indenture)
and issuances of additional “PIK Notes” (as defined in the Senior Refinancing
Indenture) in connection with an election by the Borrower to pay interest on
the PIK Notes in kind.


 


“PIK Interest Termination
Date” shall have the meaning provided in Section 2.8(a)(ii).


 


“Plan” shall
mean any multiemployer or single-employer plan, as defined in Section 4001
of ERISA and subject to Title IV of ERISA, that is or was within any of the
preceding six plan years maintained or contributed to by (or to which there is
or was an obligation to contribute or to make payments to) the Borrower or an
ERISA Affiliate.


 


“Platform” shall
have the meaning provided in Section 13.17(b).


 


“Preferred Stock”
shall mean any Equity Interest with preferential rights of payment of dividends
or upon liquidation, dissolution or winding up.


 


“Prepayment Event”
shall mean any Debt Incurrence Prepayment Event.


 


“prime rate”
shall mean the “prime rate” referred to in the definition of “ABR.”


 


“Qualified Proceeds”
shall mean assets that are used or useful in, or Capital Stock of any Person
engaged in, a Similar Business; provided that the fair market value of
any such assets or Capital Stock shall be determined by the Borrower in good
faith.


 


“Rating Agencies”
shall mean Moody’s and S&P or if Moody’s or S&P or both shall not make
a rating on the applicable security or other investment publicly available, a nationally
recognized statistical rating agency or agencies, as the case may be, selected
by the Borrower which shall be substituted for Moody’s or S&P or both, as
the case may be.


 


40

















 


“Real Estate”
shall mean land, buildings and improvements owned or leased by the Borrower or
any Guarantors, but excluding all operating fixtures and equipment, whether or
not incorporated into improvements.


 


“Receivables Facility”
shall mean any of one or more receivables financing facilities as amended,
supplemented, modified, extended, renewed, restated or refunded from time to
time, the Obligations of which are non recourse (except for customary
representations, warranties, covenants and indemnities made in connection with
such facilities) to the Borrower or any of its Restricted Subsidiaries (other
than a Receivables Subsidiary) pursuant to which the Borrower or any of its
Restricted Subsidiaries purports to sell its accounts receivable to either (a) a
Person that is not a Restricted Subsidiary or (b) a Receivables Subsidiary
that in turn funds such purchase by purporting to sell its accounts receivable
to a Person that is not a Restricted Subsidiary or by borrowing from such
Person or from another Receivables Subsidiary that in turn funds itself by
borrowing from such Person.


 


“Receivables Fees”
shall mean distributions or payments made directly or by means of discounts
with respect to any accounts receivable or participation interest therein
issued or sold in connection with, and other fees paid to a Person that is not
a Restricted Subsidiary in connection with any Receivables Facility.


 


“Receivables Subsidiary”
shall mean any Subsidiary formed for the purpose of facilitating or entering
into one or more Receivables Facilities, and in each case engages only in
activities reasonably related or incidental thereto.


 


“Refinancing Indebtedness”
shall have the meaning provided in Section 9.7(b)(13).


 


“Register” shall
have the meaning provided in Section 13.6(b)(iv).


 


“Registration Rights
Agreement” shall mean any registration rights agreement related to
the Senior Notes or the Senior Subordinated Notes, as may be executed in
connection with the refinancing or exchange of the Senior Interim Loans and/or
the Senior Term Loans, and the Senior Subordinated Interim Loans and/or the
Senior Subordinated Term Loans, respectively, by and among the Borrower, the
Guarantors and the financial institutions parties thereto, as such agreement
may be amended, modified or supplemented from time to time and, with respect to
any additional notes issued pursuant to the Indentures, one or more
registration rights agreements among the Borrower, the Guarantors and the other
parties thereto, as such agreement(s) may be amended, modified or
supplemented from time to time, relating to rights given by the Borrower and
the Guarantors to the holders of such additional notes to register such
additional notes under the Securities Act.


 


“Regulation T”
shall mean Regulation T of the Board as from time to time in effect and any successor
to all or a portion thereof establishing margin requirements.


 


“Regulation U”
shall mean Regulation U of the Board as from time to time in effect and any successor
to all or a portion thereof establishing margin requirements.


 


41

















 


“Regulation X”
shall mean Regulation X of the Board as from time to time in effect and any successor
to all or a portion thereof establishing margin requirements.


 


“Rejection Notice”
shall have the meaning provided in Section 5.2(h).


 


“Related Business Assets”
shall mean assets (other than cash or Cash Equivalents) used or useful in a
Similar Business; provided that any assets received by the Borrower or a
Restricted Subsidiary in exchange for assets transferred by the Borrower or a
Restricted Subsidiary will not be deemed to be Related Business Assets if they
consist of securities of a Person, unless upon receipt of the securities of
such Person, such Person would become a Restricted Subsidiary.


 


“Related Parties”
shall mean, with respect to any specified Person, such Person’s Affiliates and
the directors, officers, employees, agents, trustees and advisors of such
Person and any Person that possesses, directly or indirectly, the power to
direct or cause the direction of the management or policies of such Person,
whether through the ability to exercise voting power, by contract or otherwise.


 


“Reportable Event”
shall mean an event described in Section 4043 of ERISA and the regulations
thereunder, other than any event as to which the thirty day notice period has
been waived.


 


“Required Debt”
means the outstanding principal amount of (1) the Senior Interim Loans
(excluding any Senior Interim Loans held by Defaulting Lenders), (2) the
Senior Cash Pay Notes, (3) the Senior PIK Notes, (4) any securities
issued to refinance or replace any of the items described in clauses (2) through
(4) of this definition, to the extent provided in the indenture or other
agreements governing such securities, and (5) the Senior Take-out Notes (including
any additional notes), other than Senior Take-out Notes beneficially owned by
the Borrower or its Affiliates, at such date voting as a single class, to the
extent permitted under this Agreement.


 


“Required Holders”
means Persons holding the Required Debt.


 


“Required Lenders”
shall mean, at any date, Non-Defaulting Lenders having or holding a majority of
(i) the Loans (excluding the Loans of Defaulting Lenders) in the aggregate
at such date, or (ii) after issuance of any Senior Notes, a majority of
the outstanding principal amount of the Loans (excluding the Loans of
Defaulting Lenders) and the Senior Notes in the aggregate at such date, voting
as a single class.


 


“Requirement of Law”
shall mean, as to any Person, the certificate of incorporation and by-laws or
other organizational or governing documents of such Person, and any law,
treaty, rule or regulation or determination of an arbitrator or a court or
other Governmental Authority, in each case applicable to or binding upon such
Person or any of its property or assets or to which such Person or any of its
property or assets is subject.


 


“Restricted Investment”
shall mean an Investment other than a Permitted Investment.


 


42

















 


“Restricted Subsidiary”
shall mean, at any time, any direct or indirect Subsidiary of the Borrower
(including any Foreign Subsidiary) that is not then an Unrestricted Subsidiary;
provided, however, that upon an Unrestricted Subsidiary’s ceasing
to be an Unrestricted Subsidiary, such Subsidiary shall be included in the
definition of “Restricted Subsidiary.”


 


“S&P” shall
mean Standard & Poor’s Ratings Services or any successor by merger or
consolidation to its business.


 


“Sale and Lease Back
Transaction” shall mean any arrangement providing for the leasing by
the Borrower or any of its Restricted Subsidiaries of any real or tangible
personal property, which property has been or is to be sold or transferred by
the Borrower or such Restricted Subsidiary to a third Person in contemplation
of such leasing.


 


“SEC” shall mean
the Securities and Exchange Commission or any successor thereto.


 


“Second Commitment”
shall have the meaning provided in Section 9.8(b).


 


“Section 9.1
Financials” shall mean the financial statements delivered, or required
to be delivered, pursuant to Section 9.1(i) or (ii).


 


“Secured Indebtedness”
shall mean any Indebtedness of the Borrower or any of its Restricted
Subsidiaries secured by a Lien.


 


“Securities Act”
shall mean the Securities Act of 1933, as amended, and the rules and
regulations of the SEC promulgated thereunder.


 


“Securitization”
shall mean a public or private offering by a Lender or any of its Affiliates or
their respective successors and assigns of securities or notes which represent
an interest in, or which are collateralized, in whole or in part, by the Loans
and the Lender’s rights under the Loan Documents.


 


“Senior Cash Pay Fixed Rate”
shall mean 9.875% per annum.


 


“Senior Cash Pay Loans”
shall mean Senior Interim Cash Pay Loans and/or Senior Cash Pay Term Loans, as
the context requires.


 


“Senior Cash Pay Notes”
shall mean senior notes, to be issued in connection with the refinancing of or
exchange for, the Senior Cash Pay Loans under the Senior Refinancing Indenture,
the Senior Take-out Notes Indenture or any other indenture, in an aggregate principal
amount of up to $3,750,000,000 (less the amount of any Senior Interim Cash Pay
Loans and Senior Cash Pay Term Loans that remain outstanding after the issuance
of the Senior Cash Pay Notes), together with interest, fees and all other
amounts payable in connection therewith.


 


“Senior Cash Pay Term Loans”
shall have the meaning provided in Section 2.14(a)(i).


 


43

















 


“Senior Indebtedness” shall mean:


 


(1)           all Indebtedness of the Borrower or any Guarantor
outstanding under the Senior Secured Credit Agreement, the Senior Take-out
Notes Indenture, any Senior Refinancing Indenture, this Agreement and related
Guarantees (including interest accruing on or after the filing of any petition
in bankruptcy or similar proceeding or for reorganization of the Borrower or
any Guarantor (at the rate provided for in the documentation with respect
thereto, regardless of whether or not a claim for post filing interest is
allowed in such proceedings)), and any and all other fees, expense
reimbursement obligations, indemnification amounts, penalties, and other
amounts (whether existing on the Closing Date or thereafter created or
incurred) and all obligations of the Borrower or any Guarantor to reimburse any
bank or other Person in respect of amounts paid under letters of credit,
acceptances or other similar instruments;


 


(2)           all Hedging Obligations (and guarantees thereof) owing to
a Lender (as defined in the Senior Secured Credit Agreement or this Agreement,
as applicable) or any Affiliate of such Lender (or any Person that was a Lender
or an Affiliate of such Lender at the time the applicable agreement giving rise
to such Hedging Obligation was entered into); provided that such Hedging
Obligations are permitted to be incurred under the terms of this Agreement;


 


(3)           any other Indebtedness of the Borrower or any Guarantor
permitted to be incurred under the terms of this Agreement, unless the
instrument under which such Indebtedness is incurred expressly provides that it
is subordinated in right of payment to Indebtedness outstanding under the
Senior Secured Credit Agreement, this Agreement, the Senior Take-out Notes or
any related Guarantee; and


 


(4)           all Obligations with respect to the items listed in the
preceding clauses (1), (2) and (3);


 


provided, however, that Senior
Indebtedness shall not include:


 


(a)           any obligation of such Person to the Borrower or any of
its Subsidiaries;


 


(b)           any liability for federal, state, local or other taxes owed
or owing by such Person;


 


(c)           any accounts payable or other liability to trade creditors
arising in the ordinary course of business;


 


(d)           any Indebtedness or other Obligation of such Person which
is subordinate or junior in any respect to any other Indebtedness or other
Obligation of such Person; or


 


(e)           that portion of any Indebtedness which at the time of
incurrence is incurred in violation of this Agreement.


 


44

















 


“Senior Interim Cash Pay
Loan” shall have the meaning provided in Section 2.1(a)(i).


 


“Senior Interim Cash Pay
Loan Commitment” shall mean (a) in the case of each Lender that
is a Lender on the Original Closing Date, the amount set forth opposite such
Lender’s name on Schedule 1.1(b) as such Lender’s “Senior Interim
Cash Pay Loan Commitment” and (b) in the case of any Lender that becomes a
Lender after the Original Closing Date, the amount specified as such Lender’s “Senior
Interim Cash Pay Loan Commitment” in the Assignment and Acceptance pursuant to
which such Lender assumed a portion of the Total Senior Interim Loan Commitment,
in each case as the same may be changed from time to time pursuant to the terms
hereof.  The aggregate amount of the
Senior Interim Cash Pay Loan Commitments as of the Original Closing Date was
$3,750,000,000, and after giving effect to this amendment and restatement is
$1,550,000,000.


 


“Senior Interim Cash Pay
Loans Requested Amount” shall have the meaning provided in Section 2.3(a).


 


“Senior Interim Loan
Commitment” shall mean, with respect to each Lender, such Lender’s
Senior Interim Cash Pay Loan Commitment and Senior Interim PIK Loan Commitment.


 


“Senior Interim Loans”
shall mean the Senior Interim Cash Pay Loans and/or Senior Interim PIK Loans,
as the context requires.


 


“Senior Interim PIK Loan”
shall have the meaning provided in Section 2.1(a)(ii).


 


“Senior Interim PIK Loan
Commitment” shall mean (a) in the case of each Lender that is a
Lender on the Original Closing Date, the amount set forth opposite such Lender’s
name on Schedule 1.1(b) as such Lender’s “Senior Interim PIK Loan
Commitment” and (b) in the case of any Lender that becomes a Lender after
the Original Closing Date, the amount specified as such Lender’s “Senior
Interim PIK Loan Commitment” in the Assignment and Acceptance pursuant to which
such Lender assumed a portion of the Total Senior Interim Loan Commitment, in
each case as the same may be changed from time to time pursuant to the terms
hereof.  The aggregate amount of the
Senior Interim PIK Loan Commitments as of the Original Closing Date was
$2,750,000,000.


 


“Senior Interim PIK Loans
Requested Amount” shall have the meaning provided in Section 2.3(a).


 


“Senior Notes”
shall mean Senior Cash Pay Notes and/or Senior PIK Notes, as the context
requires.


 


“Senior PIK Fixed Rate”
shall mean 10.550% per annum.


 


“Senior PIK Loans”
shall mean Senior Interim PIK Loans and/or Senior PIK Term Loans, as the
context requires.


 


45

















 


“Senior PIK Notes”
shall mean senior PIK notes, to be issued in connection with the refinancing of
or exchange for, the Senior Interim PIK Loans under the Senior Refinancing
Indenture, the Senior Take-out Notes Indenture or any other indenture, in an
aggregate principal amount of up to $2,750,000,000 (less the amount of any
Senior Interim PIK Loans and Senior PIK Term Loans that remain outstanding
after the issuance of the Senior PIK Notes), together with interest (including
any PIK Interest Amount), fees and all other amounts payable in connection
therewith.


 


“Senior PIK Term Loans”
shall have the meaning provided in Section 2.14(a)(ii).


 


“Senior Refinancing
Indenture” shall mean the indenture substantially in the form
attached as Exhibit B-1 hereto be entered into in connection with
the refinancing of or the exchange of the Senior Cash Pay Loans or Senior PIK
Loans, as applicable, among the Borrower, the Guarantors and a trustee,
pursuant to which the Senior Notes shall be issued, as the same may be amended,
supplemented or otherwise modified from time to time in accordance
therewith.  In the event the Borrower
elects to modify the Senior Take-out Notes Indenture to provide for the issuance
of any Senior Notes thereunder, references to the Senior Refinancing Indenture
shall be to, or shall include, as applicable, the Senior Take-out Notes
Indenture.


 


“Senior Refinancing
Registration Rights Agreement” shall mean the registration rights
agreement substantially in the form attached as Exhibit C be
entered into in connection with the exchange of the Senior Term Loans, among
the Borrower, the Guarantors and the Administrative Agent, relating to rights
given by the Borrower and the Guarantors to the holders of Senior Notes to
register such notes under the Securities Act.


 


“Senior Secured Original
Closing Date Term Loans” shall have the meaning provided in the
recitals to this Agreement.


 


“Senior Secured Credit
Agreement” shall have the meaning provided in the recitals to this
Agreement.


 


“Senior Secured Delayed
Draw Term Loans” shall have the meaning provided in the recitals to
this Agreement.


 


“Senior Secured Revolving
Credit Loans” shall have the meaning provided in the recitals to
this Agreement.


 


“Senior Subordinated
Interim Loan Agreement” shall have the meaning provided in the
recitals to this Agreement.


 


“Senior Subordinated
Interim Loans” shall mean the Senior Subordinated Interim Loans
defined in the recitals to this Agreement.


 


“Senior Subordinated Notes”
shall mean senior subordinated notes, to be issued in refinancing of or
exchange for the Senior Subordinated Interim Loan or Senior Subordinated Term
Loans, as applicable, under the Senior Subordinated Refinancing Indenture or
any other 


 


46

















 


indenture, in an aggregate principal amount
of up to $2,500,000,000 (less the amount of any Senior Subordinated Interim
Loans and Senior Subordinated Term Loans that remain outstanding after the
issuance of the Senior Subordinated Notes), together with interest, fees and
all other amounts payable in connection therewith.


 


“Senior Subordinated
Refinancing Indenture” shall mean the indenture to be entered into
in connection with the refinancing of or exchange of the Senior Subordinated Interim
Loans or Senior Subordinated Term Loans, as applicable, among the Borrower, the
Guarantors and a trustee, pursuant to which the Senior Subordinated Notes shall
be issued, as the same may be amended, supplemented or otherwise modified from
time to time in accordance therewith.


 


“Senior Subordinated Term
Loans” shall mean term loans outstanding under the Senior
Subordinated Interim Loan Agreement after conversion, on the Interim Loan Conversion
Date, of the Senior Subordinated Interim Loans outstanding on such date.


 


“Senior Take-out Notes”
shall have the meaning provided in the recitals to this Agreement.


 


“Senior Take-out Notes
Indenture” shall have the meaning provided in the recitals to this
Agreement and is attached as Exhibit B-2 hereto.


 


“Senior Take-out Notes
Offering” shall have the meaning provided in the recitals to this
Agreement.


 


“Senior Term Loans”
shall mean Senior Cash Pay Term Loans and/or Senior PIK Term Loans, as the
context requires.


 


“Settlement”
shall mean the transfer of cash or other property with respect to any credit or
debit card charge, check or other instrument, electronic funds transfer, or
other type of paper-based or electronic payment, transfer, or charge
transaction for which a Person acts as a processor, remitter, funds recipient
or funds transmitter in the ordinary course of its business.


 


“Settlement Asset”
shall mean any cash, receivable or other property, including a Settlement Receivable,
due or conveyed to a Person in consideration for a Settlement made or arranged,
or to be made or arranged, by such Person or an Affiliate of such Person.


 


“Settlement Indebtedness”
shall mean any payment or reimbursement obligation in respect of a Settlement
Payment.


 


“Settlement Lien”
shall mean any Lien relating to any Settlement or Settlement Indebtedness (and
may include, for the avoidance of doubt, the grant of a Lien in or other assignment
of a Settlement Asset in consideration of a Settlement Payment, Liens securing
intraday and overnight overdraft and automated clearing house exposure, and
similar Liens).


 


47

















 


“Settlement Payment”
shall mean the transfer, or contractual undertaking (including by automated
clearing house transaction) to effect a transfer, of cash or other property to
effect a Settlement.


 


“Settlement Receivable”
shall mean any general intangible, payment intangible, or instrument
representing or reflecting an obligation to make payments to or for the benefit
of a Person in consideration for and in the amount of a Settlement made or
arranged, or to be made or arranged, by such Person.


 


“Significant Subsidiary”
shall mean any Restricted Subsidiary that would be a “significant subsidiary”
as defined in Article 1, Rule 1-02(w) of Regulation S-X,
promulgated pursuant to the Securities Act, as such regulation is in effect on
the Original Closing Date.


 


“Similar Business”
shall mean any business conducted or proposed to be conducted by the Borrower
and its Restricted Subsidiaries on the Closing Date or any business that is
similar, reasonably related, incidental or ancillary thereto.


 


“Solvent” shall
mean, with respect to any Person, that as of the Original Closing Date, (a) (i) the
sum of such Person’s debt (including contingent liabilities) did not exceed the
present fair saleable value of such Person’s present assets; (ii) such
Person’s capital was not unreasonably small in relation to its business as
contemplated on the Original Closing Date; and (iii) such Person had not
incurred and did not intend to incur, or believe that it would incur, debts
including current obligations beyond its ability to pay such debts as they
become due (whether at maturity or otherwise); and (b) such Person was “solvent”
within the meaning given that term and similar terms under applicable laws
relating to fraudulent transfers and conveyances.  For purposes of this definition, the amount
of any contingent liability at any time shall be computed as the amount that,
in light of all of the facts and circumstances existing at such time,
represents the amount that can reasonably be expected to become an actual or
matured liability (irrespective of whether such contingent liabilities meet the
criteria for accrual under Statement of Financial Accounting Standard No. 5).


 


“Sponsor Management
Agreement” shall mean the management agreement between certain of
the management companies associated with the Investors and the Borrower.


 


“Stock” shall
mean shares of capital stock or shares in the capital, as the case may be
(whether denominated as common stock or preferred stock or ordinary shares or
preferred shares, as the case may be), beneficial, partnership or membership
interests, participations or other equivalents (regardless of how designated)
of or in a corporation, partnership, limited liability company or equivalent
entity, whether voting or non-voting.


 


“Stock Equivalents”
shall mean all securities convertible into or exchangeable for Stock and all
warrants, options or other rights to purchase or subscribe for any Stock,
whether or not presently convertible, exchangeable or exercisable.


 


48
















 


“Subordinated Indebtedness” shall mean, with respect to the
Senior Interim Loans,


 


(1)                                  any
Indebtedness of the Borrower which is by its terms subordinated in right of
payment to the Senior Interim Loans, including the Senior Subordinated Interim
Loan Agreement, and


 


(2)                                  any
Indebtedness of any Guarantor which is by its terms subordinated in right of
payment to the Guarantee of such entity of the Senior Interim Loans, including
guaranteed Indebtedness under the Senior Subordinated Interim Loan Agreement.


 


“Subsidiary”
shall mean, with respect to any Person:


 


(1)                                  any
corporation, association, or other business entity (other than a partnership,
joint venture, limited liability company or similar entity) of which more than
50% of the total voting power of shares of Capital Stock entitled (without
regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is at the time of determination owned
or controlled, directly or indirectly, by such Person or one or more of the
other Subsidiaries of that Person or a combination thereof or is consolidated
under GAAP with such Person at such time; and


 


(2)                                  any
partnership, joint venture, limited liability company or similar entity of
which


 


(x)                                   more than 50% of the
capital accounts, distribution rights, total equity and voting interests or
general or limited partnership interests, as applicable, are owned or
controlled, directly or indirectly, by such Person or one or more of the other
Subsidiaries of that Person or a combination thereof whether in the form of
membership, general, special or limited partnership or otherwise, and


 


(y)                                 such Person or any
Restricted Subsidiary of such Person is a controlling general partner or
otherwise controls such entity.


 


“Successor Borrower”
shall have the meaning provided in Section 9.14(a)(1).


 


“Syndication Agent”
shall mean Credit Suisse together with its Affiliates, as syndication agent for
the Lenders under this Agreement and the other Loan Documents.


 


“Taxes” shall
mean any and all present or future taxes, duties, levies, imposts, assessments,
deductions, withholdings or other similar charges imposed by any Governmental Authority
whether computed on a separate, consolidated, unitary, combined or other basis
and any interest, fines, penalties or additions to tax with respect to the
foregoing.


 


“Test Period”
shall mean, for any determination under this Agreement, the four consecutive fiscal
quarters of the Borrower then last ended.


 


49

















 


“Total Assets”
shall mean, with respect to any Person, the total assets of such Person and its
Restricted Subsidiaries on a consolidated basis, as shown on the most recent consolidated
balance sheet of the Borrower or such other Person as may be expressly stated
(excluding settlement assets, as shown on such balance sheet).


 


“Total Credit Exposure”
shall mean, at any date, the aggregate outstanding principal amount of all
Loans at such date.


 


“Total Senior Interim Loan
Commitment” shall mean the aggregate total Senior Interim Loan
Commitment of all Lenders.


 


“Transaction”
shall mean, collectively, the transactions contemplated by this Agreement, the
Senior Secured Credit Agreement, the Senior Subordinated Interim Loan
Agreement, the Merger, the Equity Investments, the Debt Repayment and any
repayment, repurchase, prepayment or defeasance of Indebtedness of the Borrower
or any of its Subsidiaries in connection therewith as in effect on the Original
Closing Date.


 


“Transaction Expenses”
shall mean any fees or expenses incurred or paid by the Borrower or any of its
Subsidiaries in connection with the Transaction, the Original Senior Unsecured
Loan Agreement and the other Loan Documents and the transactions contemplated
thereby.


 


 “Transferee” shall have the meaning provided in Section 13.6(e).


 


“Trustee” shall
have the meaning provided in Section 2.14(b)(iv).


 


“Type” shall
mean as to any Loan, its nature as an ABR Loan or a LIBOR Loan.


 


“Unfunded Current Liability”
of any Plan shall mean the amount, if any, by which the Accumulated Benefit
Obligation (as defined under Statement of Financial Accounting Standards No. 87
(“SFAS 87”)) under the Plan as of the
close of its most recent plan year, determined in accordance with SFAS 87 as in
effect on the Original Closing Date, exceeds the fair market value of the
assets allocable thereto.


 


“Unrestricted Subsidiary”
shall mean:


 


(1)                                  any
Subsidiary of the Borrower which at the time of determination is an
Unrestricted Subsidiary (as designated by the Borrower, as provided below); and


 


(2)                                  any
Subsidiary of an Unrestricted Subsidiary.


 


The Borrower may designate any Subsidiary of
the Borrower (including any existing Subsidiary and any newly acquired or newly
formed Subsidiary) to be an Unrestricted Subsidiary unless such Subsidiary or
any of its Subsidiaries owns any Equity Interests or Indebtedness of, or owns
or holds any Lien on, any property of, the Borrower or any Subsidiary of the
Borrower (other than solely any Subsidiary of the Subsidiary to be so
designated); provided that


 


50

















 


(1)                                  any
Unrestricted Subsidiary must be an entity of which the Equity Interests
entitled to cast at least a majority of the votes that may be cast by all
Equity Interests having ordinary voting power for the election of directors or
Persons performing a similar function are owned, directly or indirectly, by the
Borrower;


 


(2)                                  such
designation complies with Section 9.5 hereof; and


 


(3)                                  each
of:


 


(a)                                  the Subsidiary to be
so designated; and


 


(b)                                 its Subsidiaries


 


has not at the
time of designation, and does not thereafter, create, incur, issue, assume,
guarantee or otherwise become directly or indirectly liable with respect to any
Indebtedness pursuant to which the lender has recourse to any of the assets of
the Borrower or any Restricted Subsidiary.


 


The Borrower may designate any Unrestricted
Subsidiary to be a Restricted Subsidiary; provided that, immediately
after giving effect to such designation, no Default shall have occurred and be
continuing and either:


 


(1)                                  the
Borrower could incur at least $1.00 of additional Indebtedness pursuant to the
Fixed Charge Coverage Ratio test described in Section 9.7(a) hereof;
or


 


(2)                                  the
Fixed Charge Coverage Ratio for the Borrower and its Restricted Subsidiaries
would be greater than such ratio for the Borrower and its Restricted
Subsidiaries immediately prior to such designation,


 


in each case on a pro forma basis taking into account such designation.


 


Any such designation by the Borrower shall be
notified by the Borrower to the Administrative Agent by promptly filing with
the Administrative Agent a copy of the resolution of the board of directors of
the Borrower or any committee thereof giving effect to such designation and an
Officer’s Certificate certifying that such designation complied with the
foregoing provisions.


 


“U.S.” or “United States” shall mean the United States of America.


 


“U.S. Lender”
shall have the meaning provided in Section 5.4(i).


 


“Voting Stock”
of any Person as of any date shall mean the Capital Stock of such Person that
is at such date entitled to vote in the election of the board of directors of
such Person.


 


“Weighted Average Life to
Maturity” shall mean, when applied to any Indebtedness, Disqualified
Stock or Preferred Stock, as the case may be, at any date, the quotient obtained
by dividing:


 


51

















 


(1)                                  the
sum of the products of the number of years from the date of determination to
the date of each successive scheduled principal payment of such Indebtedness or
redemption or similar payment with respect to such Disqualified Stock or
Preferred Stock multiplied by the amount of such payment; by


 


(2)                                  the
sum of all such payments.


 


“Wholly Owned Subsidiary”
of any Person shall mean a Subsidiary of such Person, 100% of the outstanding
Equity Interests of which (other than directors’ qualifying shares) shall at
the time be owned by such Person or by one or more Wholly Owned Subsidiaries of
such Person.


 


1.2.                              Other
Interpretive Provisions.  With
reference to this Agreement and each other Loan Document, unless otherwise
specified herein or in such other Loan Document:


 


(a)                                  The
meanings of defined terms are equally applicable to the singular and plural
forms of the defined terms.


 


(b)                                 The
words “herein”, “hereto”, “hereof” and “hereunder” and words of similar import
when used in any Loan Document shall refer to such Loan Document as a whole and
not to any particular provision thereof.


 


(c)                                  Article,
Section, Exhibit and Schedule references are to the Loan Document in which
such reference appears.


 


(d)                                 The
term “including” is by way of example and not limitation.


 


(e)                                  The
term “documents” includes any and all instruments, documents, agreements,
certificates, notices, reports, financial statements and other writings,
however evidenced, whether in physical or electronic form.


 


(f)                                    In
the computation of periods of time from a specified date to a later specified
date, the word “from” shall mean “from and including”; the words “to” and “until”
each shall mean “to but excluding”; and the word “through” shall mean “to and
including”.


 


(g)                                 Section headings
herein and in the other Loan Documents are included for convenience of reference
only and shall not affect the interpretation of this Agreement or any other
Loan Document.


 


(h)                                 To
the extent any provision of the Senior Refinancing Indenture is deemed to be
incorporated and set forth in this Agreement, (i) any reference to the “Issuer”
or the “Company” in the Senior Refinancing Indenture shall be deemed to be a
reference to the Borrower, (ii) any reference to a “Holder” in the Senior
Refinancing Indenture shall be deemed to be a reference to a Lender, (iii) any
reference to the “Trustee” in the Senior Refinancing Indenture shall be deemed
to be a reference to the Administrative Agent, (iv) any reference to the “Notes”
in the Senior Refinancing Indenture shall be deemed to 


 


52

















 


be a reference to the Loans and (v) any reference to “this
Indenture” in the Senior Refinancing Indenture shall be deemed to be a
reference to this Agreement and the other Loan Documents, in each case as the
context may require.


 


1.3.                              Accounting
Terms.  All accounting terms not
specifically or completely defined herein shall be construed in conformity
with, and all financial data (including financial ratios and other financial
calculations) required to be submitted pursuant to this Agreement shall be
prepared in conformity with, GAAP.


 


1.4.                              [Reserved]


 


1.5.                              References
to Agreements, Laws, Etc.  Unless
otherwise expressly provided herein, (a) references to organizational
documents, agreements (including the Loan Documents) and other Contractual
Requirements shall be deemed to include all subsequent amendments,
restatements, amendment and restatements, extensions, supplements and other
modifications thereto, but only to the extent that such amendments,
restatements, amendment and restatements, extensions, supplements and other
modifications are permitted by any Loan Document; and (b) references to
any Requirement of Law shall include all statutory and regulatory provisions
consolidating, amending, replacing, supplementing or interpreting such
Requirement of Law.


 


1.6.                              [Reserved]


 


SECTION 2.                                                   Amount
and Terms of Credit


 


2.1.                              Commitments.


 


(a)                                  Subject
to and upon the terms and conditions herein set forth,


 


(i)                                     each Lender having
a Senior Interim Cash Pay Loan Commitment made a loan or loans (each a “Senior Interim Cash Pay Loan”) in a single draw on the
Original Closing Date to the Borrower in Dollars, which Senior Interim Cash Pay
Loans did not exceed for any such Lender the Senior Interim Cash Pay Loan
Commitment of such Lender and in the aggregate equaled (after giving effect to
this amendment and restatement) $1,550,000,000; and


 


(ii)                                  each Lender having a
Senior Interim PIK Loan Commitment made a loan or loans (each a “Senior Interim PIK Loan”) in a single draw on the Original
Closing Date to the Borrower in Dollars, which Senior Interim PIK Loans did not
exceed for any such Lender the Senior Interim PIK Loan Commitment of such
Lender and in the aggregate equaled $2,750,000,000.


 


On the Closing Date and
effective as of the Original Closing Date, the Borrower and the Lenders shall
reduce the Senior Interim Cash Pay Loan Commitments such that the Senior
Interim Cash Pay Loan Commitments shall be amended to be the respective amounts
set forth opposite each Lender’s name on Schedule 1.1(b) hereto.


 


53

















 


Such Senior Interim Loans (i) shall
be incurred and maintained (except as provided in Section 2.6 and Section 2.10)
as LIBOR Loans, (ii) may be repaid or prepaid in accordance with the provisions
hereof, but once repaid or prepaid, may not be reborrowed, (iii) shall not
exceed for any such Lender the Senior Interim Loan Commitment of such Lender
and (iv) shall not exceed in the aggregate the Total Senior Interim Loan
Commitment.


 


On the applicable interest
payment dates with respect to Borrowings under Senior PIK Loans closest to March 31,
2015, the Borrower shall repay in full in Dollars an amount of Senior PIK Loans
equal to the product of (x) $50,000,000 and (y) the percentage equal
to the aggregate principal amount of outstanding Senior PIK Loans divided by
the aggregate principal amount of outstanding Senior PIK Loans and Senior PIK
Notes on such date, as determined in good faith by the Borrower rounded to the
nearest $1,000.  Prepayments of Senior
PIK Loans made pursuant to the preceding sentence shall be made on a pro rata basis based on the aggregate principal amount of Senior
PIK Loans.


 


On the Maturity Date, the
Borrower shall repay all then unpaid Loans in full in Dollars.


 


(b)                                 Each
Lender may at its option make any LIBOR Loan by causing any domestic or foreign
branch or Affiliate of such Lender to make such Loan, provided that (A) any
exercise of such option shall not affect the obligation of the Borrower to
repay such Loan and (B) in exercising such option, such Lender shall use
its reasonable efforts to minimize any increased costs to the Borrower
resulting therefrom (which obligation of the Lender shall not require it to
take, or refrain from taking, actions that it determines would result in
increased costs for which it will not be compensated hereunder or that it
determines would be otherwise disadvantageous to it and in the event of such
request for costs for which compensation is provided under this Agreement, the
provisions of Section 2.10 shall apply).


 


2.2.                              Maximum
Number of Borrowings.  More than one
Borrowing may be incurred on any date, provided that at no time shall
there be outstanding more than 30 Borrowings of LIBOR Loans under this
Agreement.


 


2.3.                              Notice
of Borrowing.


 


(a)                                  The
Borrower gave the Administrative Agent at the Administrative Agent’s Office on
the Original Closing Date, the notice of the Borrowing of the Senior Interim
Loans.  Such notice (a “Notice of Borrowing”) specified (i) the aggregate
principal amount of the Senior Interim Loans to be borrowed, $3,750,000,000 of
which was allocated to the Senior Interim Cash Pay Loans (the “Senior Interim Cash Pay Loans Requested Amount”) (such
Senior Interim Cash Pay Loans Requested Amount not to exceed the aggregate
Senior Interim Cash Pay Loan Commitments of all Lenders) and $2,750,000,000 of
which was allocated to the Senior Interim PIK Loans (the “Senior
Interim PIK Loans Requested Amount”) (such Senior Interim PIK Loans
Requested Amount not to exceed the aggregate Senior Interim PIK Loan
Commitments of all Lenders), (ii) the date of the Borrowing (which was the
Original Closing Date) and (iii) the Interest Period to be initially
applicable thereto.  The Administrative
Agent promptly gave each Lender written notice (or telephonic notice promptly
confirmed in writing) 


 


54

















 


of the Borrowing of Senior Interim Loans, of
such Lender’s proportionate share thereof and of the other matters covered by
the related Notice of Borrowing.


 


(b)                                 Without
in any way limiting the obligation of the Borrower to confirm in writing any
notice it may give hereunder by telephone, the Administrative Agent may act
prior to receipt of written confirmation without liability upon the basis of
such telephonic notice believed by the Administrative Agent in good faith to be
from an Authorized Officer of the Borrower.


 


2.4.                              Disbursement
of Funds.


 


(a)                                  No
later than 2:00 p.m. (New York City time) on the date specified in the
Notice of Borrowing, each Lender made available its pro rata
portion, if any, of each Borrowing made on the Original Closing Date in the
manner provided below; provided that such funds were made available at
such earlier time as agreed among the Lenders, the Borrower and the Administrative
Agent for the purpose of consummating the Transaction.


 


(b)                                 Each
Lender made available all amounts it was to fund to the Borrower under the
Borrowing for its applicable Commitments, and in immediately available funds to
the Administrative Agent at the Administrative Agent’s Office and the
Administrative Agent made available to the Borrower, by depositing to an
account designated by the Borrower to the Administrative Agent the aggregate of
the amounts so made available in Dollars. 
Unless the Administrative Agent had been notified by any Lender prior to
the date of the Borrowing that such Lender did not intend to make available to
the Administrative Agent its portion of the Borrowing made on such date, the
Administrative Agent may assume that such Lender made such amount available to
the Administrative Agent on the date of the Borrowing, and the Administrative
Agent, in reliance upon such assumption, (in its sole discretion and without
any obligation to do so) made available to the Borrower a corresponding
amount.  If such corresponding amount is
not in fact made available to the Administrative Agent by such Lender and the
Administrative Agent made available such amount to the Borrower, the
Administrative Agent shall be entitled to recover such corresponding amount
from such Lender.  If such Lender did not
pay such corresponding amount forthwith upon the Administrative Agent’s demand
therefor the Administrative Agent shall promptly notify the Borrower and the
Borrower shall immediately pay such corresponding amount to the Administrative
Agent in Dollars.  The Administrative
Agent shall also be entitled to recover from such Lender or the Borrower
interest on such corresponding amount in respect of each day from the date such
corresponding amount was made available by the Administrative Agent to the Borrower
to the date such corresponding amount is recovered by the Administrative Agent,
at a rate per annum equal to (i) if paid by
such Lender, the Overnight Rate or (ii) if paid by the Borrower, the
then-applicable rate of interest or fees, calculated in accordance with Section 2.8,
for the respective Loans.


 


(c)                                  Nothing
in this Section 2.4 shall be deemed to relieve any Lender from its
obligation to, fulfill its commitments hereunder or to prejudice any rights
that the Borrower may have against any Lender as a result of any default by
such Lender hereunder (it being understood, however, that no Lender shall be
responsible for the failure of any other Lender to fulfill its commitments
hereunder).


 


55

















 


2.5.                              Repayment
of Loans; Evidence of Debt.


 


(a)                                  The
Borrower shall repay to the Administrative Agent, for the benefit of the
Lenders, on the Term Loan Maturity Date, the then-outstanding Loans, in
Dollars.


 


(b)                                 Each
Lender shall maintain in accordance with its usual practice an account or
accounts evidencing the indebtedness of the Borrower to the appropriate lending
office of such Lender resulting from each Loan made by such lending office of
such Lender from time to time, including the amounts of principal and interest
payable and paid to such lending office of such Lender from time to time under
this Agreement.


 


(c)                                  The
Administrative Agent shall maintain the Register pursuant to Section 13.6(b),
and a subaccount for each Lender, in which Register and subaccounts (taken
together) shall be recorded (i) the amount of each Loan made hereunder,
the Type of each Loan made and the Interest Period, if any, applicable thereto,
(ii) the amount of any principal (including any PIK Interest Amounts) or
interest due and payable or to become due and payable from the Borrower to each
Lender hereunder and (iii) the amount of any sum received by the Administrative
Agent hereunder from the Borrower and each Lender’s share thereof.


 


(d)                                 The
entries made in the Register and accounts and subaccounts maintained pursuant
to clauses (b) and (c) of this Section 2.5
shall, to the extent permitted by applicable law, be prima facie evidence of
the existence and amounts of the obligations of the Borrower therein recorded; provided,
however, that the failure of any Lender or the Administrative Agent to
maintain such account, such Register or subaccount, as applicable, or any error
therein, shall not in any manner affect the obligation of the Borrower to repay
(with applicable interest) the Loans made to the Borrower by such Lender in
accordance with the terms of this Agreement.


 


2.6.                              Conversions
and Continuations.


 


(a)                                  Subject
to the penultimate sentence of this clause (a), (x) the Borrower
shall have the option, subject to Section 2.10, on any Business Day
to convert all or a portion equal to at least $5,000,000 of the outstanding
principal amount of one Type into a Borrowing or Borrowings of another Type and
(y) the Borrower shall have the option on any Business Day to continue the
outstanding principal amount of any LIBOR Loans as LIBOR Loans for an additional
Interest Period, provided that (i) ABR Loans may not be converted
into LIBOR Loans if a Default or Event of Default is in existence on the date
of the conversion and the Administrative Agent has or the Required Lenders have
determined in its or their sole discretion not to permit such conversion, (ii) LIBOR
Loans may not be continued as LIBOR Loans for an additional Interest Period if
a Default or Event of Default is in existence on the date of the proposed
continuation and the Administrative Agent has or the Required Lenders have determined
in its or their sole discretion not to permit such continuation and (iii) Borrowings
resulting from conversions pursuant to this Section 2.6 shall be
limited in number as provided in Section 2.2.  Each such conversion or continuation shall be
effected by the Borrower by giving the Administrative Agent at the
Administrative Agent’s Office prior to 1:00 p.m. (New York City time) at
least (i) three Business Days’ prior written notice (or telephonic notice
promptly confirmed in writing), in the case of a continuation of or conversion
to LIBOR Loans (other than in the case of a notice 


 


56

















 


delivered on the Original Closing Date
pursuant to clause (c), which shall be deemed to be effective on the Original
Closing Date) or (ii) one Business Day’s prior written notice (or
telephonic notice promptly confirmed in writing) in the case of a conversion
into ABR Loans (each, a “Notice of Conversion or
Continuation”) specifying the Loans to be so converted or continued,
the Type of Loans to be converted or continued into and, if such Loans are to
be converted into or continued as LIBOR Loans, the Interest Period to be
initially applicable thereto.  The Administrative
Agent shall give each applicable Lender notice as promptly as practicable of
any such proposed conversion or continuation affecting any of its Loans.


 


(b)                                 If
any Default or Event of Default is in existence at the time of any proposed continuation
of any LIBOR Loans denominated in Dollars and the Administrative Agent has or
the Required Lenders have determined in its or their sole discretion not to
permit such continuation, such LIBOR Loans shall be automatically converted on
the last day of the current Interest Period into ABR Loans.  If upon the expiration of any Interest Period
in respect of LIBOR Loans, the Borrower has failed to elect a new Interest
Period to be applicable thereto as provided in clause (a), the Borrower
shall be deemed to have elected to convert such Borrowing of LIBOR Loans into a
Borrowing of ABR Loans, effective as of the expiration date of such current
Interest Period.


 


(c)                                  Notwithstanding
anything to the contrary herein, the Borrower may deliver a Notice of
Conversion or Continuation pursuant to which the Borrower elects to irrevocably
continue the outstanding principal amount of any Loans subject to an interest
rate Hedging Obligations as LIBOR Loans for each Interest Period until the
expiration of the term of such applicable Hedging Obligations.


 


2.7.                              Pro
Rata Borrowings.  Each Borrowing of
Senior Interim Cash Pay Loans under this Agreement shall be made by the Lenders
pro rata on the basis of their
then-applicable Senior Interim Cash Pay Commitments.  Each Borrowing of Senior Interim PIK Loans
under this Agreement shall be made by the Lenders pro rata
on the basis of their then-applicable Senior Interim PIK Commitments.  It is understood that (a) no Lender
shall be responsible for any default by any other Lender in its obligation to
make Loans hereunder and that each Lender severally but not jointly shall be
obligated to make the Loans provided to be made by it hereunder, regardless of
the failure of any other Lender to fulfill its commitments hereunder and (b) other
than as expressly provided herein with respect to a Defaulting Lender, failure
by a Lender to perform any of its obligations under any of the Loan Documents
shall not release any Person from performance of its obligation under any Loan
Document.


 


2.8.                              Interest.


 


(a)                                  (i) 
The unpaid principal amount of each Senior Cash Pay Loan that is an ABR Loan
shall bear interest from the date of the Borrowing thereof until maturity
thereof (whether by acceleration or otherwise) at a rate per annum
that shall at all times be the Applicable ABR Margin plus the ABR, in effect
from time to time.


 


(ii)                                  The
unpaid principal amount of each Senior PIK Loan that is an ABR Loan shall bear
interest (A) for any Interest Period from the date of the Borrowing
thereof until 


 


57

















 


but not including the fourth anniversary of the Original Closing Date
(the “PIK Interest Termination Date”)
entirely by increasing the principal amount of the outstanding Senior PIK Loans
(“PIK Interest”) and (B) for any
Interest Period from the PIK Interest Termination Date until the Term Loan
Maturity Date (whether by acceleration or otherwise) entirely in cash (“Cash Interest”).  Any
Cash Interest shall accrue for each day during such Interest Period at a rate per annum that shall at all times be the Applicable ABR
Margin plus the ABR, in effect from time to time.  Any PIK Interest shall accrue for each day
during such Interest Period at a rate per annum that
shall at all times be the Applicable ABR Margin plus the ABR, in each case in
effect from time to time.


 


(b)                                 (i) 
The unpaid principal amount of each Senior Cash Pay Loan that is a LIBOR Loan
shall bear interest from the date of the Borrowing thereof until maturity
thereof (whether by acceleration or otherwise) at a rate per annum
that shall at all times be the Applicable LIBOR Margin plus the relevant LIBOR
Rate.


 


(ii)                                  The
unpaid principal amount of each Senior PIK Loan that is a LIBOR Loan shall bear
interest (A) for any Interest Period from the date of the Borrowing
thereof until but not including the PIK Interest Termination Date entirely as
PIK Interest and (B) for any Interest Period from the PIK Interest
Termination Date until maturity (whether by acceleration or otherwise) entirely
as Cash Interest.  Any Cash Interest
shall accrue for each day during such Interest Period at a rate per annum that shall at all times be the Applicable LIBOR
Margin plus the relevant LIBOR Rate, in effect from time to time.  Any PIK Interest shall accrue for each day during
such Interest Period at a rate per annum that
shall at all times be the Applicable LIBOR Margin plus the relevant LIBOR Rate,
in each case in effect from time to time.


 


(c)                                  If
all or a portion of (i) the principal amount of any Loan or (ii) any
interest payable thereon shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise), such overdue amount shall bear
interest at a rate per annum that
is (the “Default Rate”) (x) in the case of
overdue principal, the rate that would otherwise be applicable thereto plus 2%
or (y) in the case of any overdue interest, to the extent permitted by
applicable law, the rate described in Section 2.8(a) plus 2%
from the date of such non-payment to the date on which such amount is paid in
full (after as well as before judgment).


 


(d)                                 Interest
on each Loan shall accrue from and including the date of any Borrowing to but
excluding the date of any repayment thereof and shall be payable in Dollars; provided
that any Loan that is repaid on the same date on which it is made shall bear
interest for one day.  Except as provided
below, interest shall be payable (i) in respect of each ABR Loan, quarterly
in arrears on the last Business Day of each March, June, September and December (provided
that the first such payment shall be on December 31, 2007), (ii) in respect
of each LIBOR Loan, on the last day of each Interest Period applicable thereto
and, in the case of an Interest Period in excess of three months, on each date
occurring at three-month intervals after the first day of such Interest Period,
(iii) in respect of each Loan, (A) on any prepayment, (B) at
maturity (whether by acceleration or otherwise) and (C) after such
maturity, on demand.


 


(e)                                  All
computations of interest hereunder shall be made in accordance with Section 5.5.


 


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(f)                                    The
Administrative Agent, upon determining the interest rate for any Borrowing of
LIBOR Loans, shall promptly notify the Borrower and the Lenders thereof.  Each such determination shall, absent clearly
demonstrable error, be final and conclusive and binding on all parties hereto.


 


2.9.                              Interest
Periods.  At the time the Borrower
gives a Notice of Borrowing or Notice of Conversion or Continuation in respect
of the making of, or conversion into or continuation as, a Borrowing of LIBOR
Loans in accordance with Sections 2.3(a) and 2.6(a), the
Borrower shall give the Administrative Agent written notice (or telephonic
notice promptly confirmed in writing) of the Interest Period applicable to such
Borrowing, which Interest Period shall, at the option of the Borrower be a one,
two, three or six month period.


 


Notwithstanding
anything to the contrary contained above:


 


(a)                                  the
initial Interest Period for any Borrowing of LIBOR Loans shall commence on the
date of such Borrowing (including the date of any conversion from a Borrowing
of ABR Loans) and each Interest Period occurring thereafter in respect of such
Borrowing shall commence on the day on which the next preceding Interest Period
expires;


 


(b)                                 if
any Interest Period relating to a Borrowing of LIBOR Loans begins on the last
Business Day of a calendar month or begins on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period,
such Interest Period shall end on the last Business Day of the calendar month
at the end of such Interest Period;


 


(c)                                  if
any Interest Period would otherwise expire on a day that is not a Business Day,
such Interest Period shall expire on the next succeeding Business Day, provided
that if any Interest Period in respect of a LIBOR Loan would otherwise expire
on a day that is not a Business Day but is a day of the month after which no
further Business Day occurs in such month, such Interest Period shall expire on
the next preceding Business Day; and


 


(d)                                 the
Borrower shall not be entitled to elect any Interest Period in respect of any
LIBOR Loan if such Interest Period would extend beyond the Maturity Date of
such Loan.


 


2.10.                        Increased
Costs, Illegality, Etc.


 


(a)                                  In
the event that (x) in the case of clause (i) below, the
Administrative Agent or (y) in the case of clauses (ii) and (iii) below,
any Lender shall have reasonably determined (which determination shall, absent
clearly demonstrable error, be final and conclusive and binding upon all
parties hereto):


 


(i)                                     on any date for determining
the LIBOR Rate for any Interest Period that (x) deposits in the principal
amounts and currencies of the Loans comprising such LIBOR Borrowing are not
generally available in the relevant market or (y) by reason of any 


 


59

















 


changes arising on or after the Original Closing Date affecting the
interbank LIBOR market, adequate and fair means do not exist for ascertaining
the applicable interest rate on the basis provided for in the definition of
LIBOR Rate; or


 


(ii)                                  at any time, that
such Lender shall incur increased costs or reductions in the amounts received
or receivable hereunder with respect to any LIBOR Loans (other than any
increase or reduction attributable to Taxes, described in paragraph (d) of
this Section 2.10) because of (x) any change since the
Original Closing Date in any applicable law, governmental rule, regulation,
guideline or order (or in the interpretation or administration thereof and
including the introduction of any new law or governmental rule, regulation,
guideline or order), such as, for example, without limitation, a change in official
reserve requirements, and/or (y) other circumstances affecting the
interbank LIBOR market or the position of such Lender in such market; or


 


(iii)                               at any time, that the
making or continuance of any LIBOR Loan has become unlawful by compliance by
such Lender in good faith with any law, governmental rule, regulation,
guideline or order (or would conflict with any such governmental rule,
regulation, guideline or order not having the force of law even though the
failure to comply therewith would not be unlawful), or has become impracticable
as a result of a contingency occurring after the Original Closing Date that
materially and adversely affects the interbank LIBOR market;


 


then, and in any such event,
such Lender (or the Administrative Agent, in the case of clause (i) above)
shall within a reasonable time thereafter give notice (if by telephone,
confirmed in writing) to the Borrower and to the Administrative Agent of such
determination (which notice the Administrative Agent shall promptly transmit to
each of the other Lenders).  Thereafter (x) in
the case of clause (i) above, LIBOR Loans shall no longer be
available until such time as the Administrative Agent notifies the Borrower and
the Lenders that the circumstances giving rise to such notice by the
Administrative Agent no longer exist (which notice the Administrative Agent
agrees to give at such time when such circumstances no longer exist), and any Notice
of Borrowing or Notice of Conversion or Continuation given by the Borrower with
respect to LIBOR Loans that have not yet been incurred shall be deemed
rescinded by the Borrower, (y) in the case of clause (ii) above,
the Borrower shall pay to such Lender, promptly after receipt of written demand
therefor such additional amounts (in the form of an increased rate of, or a
different method of calculating, interest or otherwise as such Lender in its
reasonable discretion shall determine) as shall be required to compensate such
Lender for such increased costs or reductions in amounts receivable hereunder
(it being agreed that a written notice as to the additional amounts owed to
such Lender, showing in reasonable detail the basis for the calculation thereof,
submitted to the Borrower by such Lender shall, absent clearly demonstrable
error, be final and conclusive and binding upon all parties hereto) and (z) in
the case of subclause (iii) above, the Borrower shall take one of
the actions specified in subclause (x) or (y), as
applicable, of Section 2.10(b) as promptly as possible and, in
any event, within the time period required by law.


 


(b)                                 At
any time that any LIBOR Loan is affected by the circumstances described in Section 2.10(a)(ii) or
(iii), the Borrower may (and in the case of a LIBOR Loan affected
pursuant to Section 2.10(a)(iii) shall) either (x) if the
affected LIBOR Loan is then being


 


60
















 


made pursuant to a Borrowing, cancel such
Borrowing by giving the Administrative Agent telephonic notice (confirmed
promptly in writing) thereof on the same date that the Borrower was notified by
a Lender pursuant to Section 2.10(a)(ii) or (iii) or (y) if the
affected LIBOR Loan is then outstanding, upon at least three Business Days’
notice to the Administrative Agent, require the affected Lender to convert each
such LIBOR Loan into an ABR Loan, provided that if more than one
Lender is affected at any time, then all affected Lenders must be treated in
the same manner pursuant to this Section 2.10(b).


 


(c)           If, after the Original Closing Date, any Change in Law
relating to capital adequacy of any Lender or compliance by any Lender or its
parent with any Change in Law relating to capital adequacy occurring after the
Original Closing Date, has or would have the effect of reducing the rate of
return on such Lender’s or its parent’s or its Affiliate’s capital or assets as
a consequence of such Lender’s commitments or obligations hereunder to a level
below that which such Lender or its parent or its Affiliate could have achieved
but for such Change in Law (taking into consideration such Lender’s or its
parent’s policies with respect to capital adequacy), then from time to time,
promptly after demand by such Lender (with a copy to the Administrative Agent),
the Borrower shall pay to such Lender such additional amount or amounts as will
compensate such Lender or its parent for such reduction, it being understood
and agreed, however, that a Lender shall not be entitled to such compensation
as a result of such Lender’s compliance with, or pursuant to any request or
directive to comply with, any law, rule or regulation as in effect on the
Original Closing Date.  Each Lender, upon
determining in good faith that any additional amounts will be payable pursuant
to this Section 2.10(c), will give
prompt written notice thereof to the Borrower, which notice shall set forth in
reasonable detail the basis of the calculation of such additional amounts,
although the failure to give any such notice shall not, subject to Section 2.13, release or
diminish the Borrower’s obligations to pay additional amounts pursuant to this Section 2.10(c) upon receipt of such notice.


 


(d)           It is understood that this Section 2.10 shall not
apply to (i) Taxes indemnifiable under Section 5.4, (ii) net
income taxes and franchise and excise taxes (imposed in lieu of net income
taxes) imposed on any Agent or Lender or (iii) Taxes described under clauses
(b) and (c) of the definition of Excluded Taxes.


 


2.11.        Compensation.  If (a) any payment of principal of any
LIBOR Loan is made by the Borrower to or for the account of a Lender other than
on the last day of the Interest Period for such LIBOR Loan as a result of a
payment or conversion pursuant to Section 2.5, 2.6, 2.10,
5.1, 5.2 or 13.7, as a result of acceleration of the
maturity of the Loans pursuant to Section 11 or for any other reason, (b) any
Borrowing of LIBOR Loans is not made as a result of a withdrawn Notice of Borrowing,
(c) any ABR Loan is not converted into a LIBOR Loan as a result of a
withdrawn Notice of Conversion or Continuation, (d) any LIBOR Loan is not
continued as a LIBOR Loan, as the case may be, as a result of a withdrawn
Notice of Conversion or Continuation or (e) any prepayment of principal of
any LIBOR Loan is not made as a result of a withdrawn notice of prepayment
pursuant to Section 5.1 or 5.2, the Borrower shall, after
receipt of a written request by such Lender (which request shall set forth in
reasonable detail the basis for requesting such amount), pay to the
Administrative Agent for the account of such Lender any amounts required to compensate
such Lender for any additional losses, costs or expenses that such Lender may
reasonably incur as a result of such payment, failure to convert, failure to continue


 


61

















 


or failure to prepay,
including any loss, cost or expense (excluding loss of anticipated profits)
actually incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by any Lender to fund or maintain such LIBOR Loan.  Notwithstanding the foregoing, if solely as a
result of the consummation of the Senior Take-out Notes Offering, a Lender
suffers loss, cost or expense (excluding loss of anticipated profits) (the “Senior Take-out Notes Loss”) incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by any Lender
to fund or maintain LIBOR Loan, the Borrower shall not be required to be pay
any amount to compensate such Lender for its Senior Take-out Notes Loss.


 


2.12.        Change of Lending Office.  Each Lender agrees that, upon the occurrence
of any event giving rise to the operation of Section 2.10(a)(ii), 2.10(a)(iii),
2.10(b) or 5.4 with respect to such Lender, it will, if
requested by the Borrower use reasonable efforts (subject to overall policy
considerations of such Lender) to designate another lending office for any
Loans affected by such event, provided that such designation is made on
such terms that such Lender and its lending office suffer no economic, legal or
regulatory disadvantage, with the object of avoiding the consequence of the
event giving rise to the operation of any such Section.  Nothing in this Section 2.12
shall affect or postpone any of the obligations of the Borrower or the right of
any Lender provided in Section 2.10 or 5.4.


 


2.13.        Notice of Certain Costs.  Notwithstanding anything in this Agreement to
the contrary, to the extent any notice required by Section 2.10, 2.11
or 5.4 is given by any Lender more than 120 days after such Lender has
knowledge (or should have had knowledge) of the occurrence of the event giving
rise to the additional cost, reduction in amounts, loss, tax or other
additional amounts described in such Sections, such Lender shall not be
entitled to compensation under Section 2.10, 2.11 or 5.4,
as the case may be, for any such amounts incurred or accruing prior to the
121st day prior to the giving of such notice to the Borrower.


 


2.14.        Permanent Refinancing.


 


(a)           On the Interim Loan Conversion Date:


 


(i)            all outstanding
Senior Interim Cash Pay Loans shall be converted into term loans (each, a “Senior Cash Pay Term Loan”) having an aggregate principal
amount equal to the unpaid principal amount of such Senior Interim Cash Pay
Loans, in each case to the extent such Loans are not repaid in whole or in part
in cash on or prior to such date; and


 


(ii)           all outstanding
Senior Interim PIK Loans shall be converted into term loans (each, a “Senior PIK Term Loan”) having an aggregate principal amount
equal to the unpaid principal amount of such Senior Interim PIK Loans, in each
case to the extent such Loans are not repaid in whole or in part in cash on or
prior to such date.


 


(b)           (i)  On the fifteenth (15th) day of each calendar
month (each, an “Exchange Date”), or if such day is
not a Business Day, the preceding Business Day, on or after the Interim Loan
Conversion Date, at the option of the applicable Lender, (A) the Senior Cash
Pay Term Loans may be exchanged in whole or in part for one or more Senior Cash
Pay Notes having


 


62





















 


an aggregate principal amount equal to the
unpaid principal amount of such Senior Cash Pay Term Loans and (B) the
Senior PIK Term Loans may be exchanged in whole or in part for one or more
Senior PIK Notes having an aggregate principal amount equal to the unpaid
principal amount of such Senior PIK Term Loans; provided, however,
that the Borrower shall not be required to issue Senior Cash Pay Notes or
Senior PIK Notes, as the case may be, until the Borrower shall have received
requests to issue at least $150,000,000 in aggregate principal amount of Senior
Notes and that the amount of Term Loans exchanged for Senior Notes must be in excess
of $1,000,000 in principal amount.


 


(ii)     Such Lender shall provide the Borrower prior irrevocable written
notice of such election (each such notice, an “Exchange
Notice”), substantially in the form of Exhibit D-1 or Exhibit D-2,
as applicable, at least five Business Days prior to the date of exchange.  The Exchange Notice shall specify the principal
amount of Senior Term Loans to be exchanged and, subject to the terms of the
Senior Refinancing Indenture or the Senior Take-out Notes Indenture (as the
case may be), the name of the proposed registered holder and the amount of each
Senior Note requested.  Senior Term Loans
exchanged for Senior Notes pursuant to this Section 2.14 shall be
deemed repaid and canceled, and the Senior Notes so issued shall be governed by
and construed in accordance with the provisions of the Senior Refinancing
Indenture or the Senior Take-out Notes Indenture (as the case may be).  The Senior Notes shall be issued in the form
set forth in the Senior Refinancing Indenture or the Senior Take-out Notes Indenture
(as the case may be).


 


(iii)    As more particularly provided in the Senior Refinancing
Indenture, (A) Senior Cash Pay Notes issued pursuant to the Senior
Refinancing Indenture shall bear interest at the rate applicable to Senior Cash
Pay Term Loans (unless a Lender shall elect to have the interest rate fixed at
the rate applicable to Senior Cash Pay Term Loans in effect on the date of such
exchange if necessary to effect an actual bona fide sale of such Senior Cash
Pay Notes on such date to a third party that is not an Affiliate of such
Lender), (B) Senior PIK Notes issued pursuant to the Senior Refinancing
Indenture shall bear interest at the rate applicable to Senior PIK Term Loans
(unless a Lender shall elect to have the interest rate fixed at the rate
applicable to Senior PIK Term Loans in effect on the date of such exchange if
necessary to effect an actual bona fide sale of such Senior PIK Notes on such
date to a third party that is not an Affiliate of such Lender), and (C) Senior
Notes issued pursuant to the Senior Refinancing Indenture (I) shall mature
on September 24, 2015 and (II) shall be redeemable as set forth in
the Senior Refinancing Indenture and the applicable form of Senior Notes attached
thereto.


 


(iv)    Not later than five Business Days after the Exchange Date
following delivery of any Exchange Notice, the Borrower shall (A) deliver
a written notice to the trustee under the Senior Refinancing Indenture (the “Trustee”), directing such Trustee to authenticate and
deliver Senior Cash Pay Notes and/or Senior PIK Notes as specified in the
Exchange Notice and (B) use all commercially reasonable efforts to effect
delivery of such Senior Cash Pay Notes and/or Senior PIK Notes to the requesting
Lender.


 


(c)     The Borrower agrees that as a condition to the effectiveness of
the exchange of Senior Term Loans for Senior Notes:


 


63





















 


(i)            The Borrower shall
have selected a bank or trust company reasonably acceptable to the Lenders to
act as Trustee.


 


(ii)           The Borrower shall
have issued the Senior Notes pursuant to the Senior Refinancing Indenture
substantially in the applicable form set forth therein, and the Borrower and
each Guarantor shall have executed and delivered the Senior Refinancing Indenture.


 


(iii)          The Borrower and
each Guarantor shall have provided to the Administrative Agent copies of
resolutions of its board of directors approving the execution and delivery of
the Senior Refinancing Indenture and, in the case of the Borrower, the issuance
of the Senior Notes, together with a customary certificate of the secretary of
the Borrower or such Guarantor certifying such resolutions.


 


(iv)          The Borrower and
each Guarantor shall have executed and delivered the Senior Refinancing Registration
Rights Agreement.


 


(v)           The Borrower and
each Guarantor shall have provided to the Lenders copies of resolutions of its
Board of Directors approving the execution and delivery of the Senior Refinancing
Registration Rights Agreement, together with a customary certificate of the
secretary of the Borrower or such Guarantor certifying such resolutions.


 


(d)           If the foregoing conditions set forth in Section 2.14(c) are not
satisfied on the Interim Loan Conversion Date, then the Lenders shall retain
all of their rights and remedies with respect to the Senior Term Loans pursuant
to this Agreement until such conditions are satisfied and the Senior Term Loans
are so exchanged for Senior Notes.  The
Borrower agrees to satisfy the conditions set forth in Section 2.14(c) no
later than ten Business Days after receipt of the first Exchange Notice.


 


(e)           Nothing in this Section 2.14 shall prevent or
limit the ability of the Borrower from repaying or refinancing the Loans in any
other manner not otherwise prohibited by this Agreement.


 


SECTION 3.                 [Reserved]


 


SECTION 4.                 Fees; Commitments


 


4.1.          Administrative Agent’s Fees.  The Borrower agrees to pay, or cause to be
paid, to the Administrative Agent, solely for its own account, an annual
administrative fee equal to $100,000 per annum,
payable annually in advance on the Original Closing Date for the twelve-month
period following the Original Closing Date and on each anniversary thereof
until all Loans and all Obligations with respect thereto have been paid in
full.


 


4.2.          [Reserved]


 


4.3.          Mandatory Termination of Commitments.  The Senior Interim Loan Commitments
terminated at 5:00 p.m. (New York City time) on the Original Closing Date.


 


64

















 


SECTION 5.                 Payments


 


5.1.          Voluntary Prepayments.


 


(a)           The Borrower shall have the right to prepay Loans without
premium or penalty, in whole or in part from time to time on the following
terms and conditions:  (a) the Borrower
shall give the Administrative Agent at the Administrative Agent’s Office
written notice (or telephonic notice promptly confirmed in writing) of its
intent to make such prepayment, the amount of such prepayment and (in the case
of LIBOR Loans) the specific Borrowing(s) pursuant to which made, which
notice shall be given by the Borrower no later than 1:00 p.m. (New York
City time) (i) in the case of LIBOR Loans, three Business Days prior to or
(ii) in the case of ABR Loans, one Business Day prior to, the date of such
prepayment; (b) each partial prepayment of (i) any Borrowing of LIBOR
Loans shall be in a minimum amount of $5,000,000 and in multiples of $1,000,000
in excess thereof and (ii) any ABR Loans shall be in a minimum amount of
$1,000,000 and in multiples of $100,000 in excess thereof, provided that
no partial prepayment of LIBOR Loans made pursuant to a single Borrowing shall
reduce the outstanding LIBOR Loans made pursuant to such Borrowing to an amount
less than $5,000,000 and (c) any prepayment of LIBOR Loans pursuant to
this Section 5.1 on any day other than the last day of an Interest
Period applicable thereto shall be subject to compliance by the Borrower with
the applicable provisions of Section 2.11.  Each prepayment in respect of any Loans
pursuant to this Section 5.1 shall be applied to the Cash Pay or
PIK Loans, as specified by the Borrower on a pro rata
basis based on the aggregate principal amount of Cash Pay Loans or PIK Loans,
as applicable, outstanding at such time. 
At the Borrower’s election in connection with any prepayment pursuant to
this Section 5.1, such prepayment shall not be applied to any Loan
of a Defaulting Lender.


 


(b)           At the end of any “accrual period” (as defined in Section 1272(a)(5) of
the Code) ending after the fifth anniversary of the Original Closing Date
(each, an “AHYDO redemption date”), the
Borrower may pay in cash all accrued but unpaid interest and all accrued but
unpaid “original issue discount” (as defined in Section 1273(a)(1) of
the Code) on each Senior PIK Term Loan and/or Senior PIK Note then outstanding
up to the Optional Interest Repayment Amount, minus $50,000,000 (each such
redemption, an “Optional Interest Repayment”).  The “Optional Interest
Repayment Amount” shall mean, as of each AHYDO redemption date, the
excess, if any, of (a) the aggregate amount of accrued and unpaid interest
and all accrued and unpaid “original issue discount” (as defined in Section 1273(a)(1) of
the Code) with respect to the applicable Senior PIK Term Loan or Senior PIK
Note, over (b) an amount equal to the product of (i) the “issue price”
(as defined in Sections 1273(b) and 1274(a) of the Code) of the applicable
Senior PIK Term Loan or Senior PIK Note multiplied by (ii) the “yield to
maturity” (as defined in the Treasury Regulation Section 1.1272-1(b)(1)(i))
of such Senior PIK Term Loan or Senior PIK Note.


 


5.2.          Mandatory Prepayments.


 


(a)           Loan Prepayments. 
(i)  Prior to Interim Loan Conversion Date, on each occasion that a
Prepayment Event occurs, the Borrower shall, within three Business Days after
its receipt of the Net Cash Proceeds of a Debt Incurrence Prepayment Event,
prepay, in accordance with clause (c) below Loans with a principal
amount equal to 100% of the Net Cash Proceeds


 


65





















 


from such Prepayment Event; provided
that the Borrower may, to the extent required by the Senior Secured Credit
Agreement, apply such Net Cash Proceeds to prepay, repay or repurchase
Indebtedness outstanding under the Senior Secured Credit Agreement within three
Business Days after receipt thereof, prior to the application of such Net Cash
Proceeds to prepay Loans.


 


(ii)           At any time on or after the Interim
Loan Conversion Date, the provisions of Section 5.2(a)(i) shall no longer be
operative.


 


(b)           [Reserved]


 


(c)           Application to Repayment Amounts.  Subject to Section 5.2(h), each
prepayment of Senior Interim Loans required by Section 5.2(a)(i) the
proceeds of which are derived from the Take-out Notes or the sale of Senior
Cash Pay Notes shall be applied on a pro rata basis
to the aggregate principal amount of outstanding Senior Cash Pay Loans and the
proceeds of which are derived from the sale of Senior PIK Notes shall be
applied on a pro rata basis to the aggregate
principal amount of outstanding Senior PIK Loans; provided
that if all Senior Cash Pay Loans or Senior PIK Loans have previously been
repaid, any such proceeds from Senior Notes shall be applied on a pro rata basis to the aggregate principal amount of any
remaining Loans.  Subject to Section 5.2(h),
each prepayment of Senior Interim Loans required by Section 5.2(a)(i) the
proceeds of which are derived from any incurrence of Indebtedness pursuant to Section 9.7(a) shall
be applied on a pro rata basis to the aggregate
principal amount of the outstanding Senior Interim Loans and Senior
Subordinated Interim Loans.  Subject to Section 5.2(h), with respect
to each such prepayment, the Borrower will, not later than the date specified
in Section 5.2(a) for making such prepayment, give the
Administrative Agent telephonic notice (promptly confirmed in writing) requesting
that the Administrative Agent provide notice of such prepayment to each Lender.


 


(d)           Application to Loans.  With respect to each prepayment of Loans required
by Section 5.2(a) or required or permitted by Section 9.8(b) the
Borrower may, if applicable, designate the Types of Loans that are to be
prepaid and the specific Borrowing(s) pursuant to which made.  In the absence of a designation by the
Borrower as described in the preceding sentence, the Administrative Agent
shall, subject to the above, make such designation in its reasonable discretion
with a view, but no obligation, to minimize breakage costs owing under Section 2.11.


 


(e)           [Reserved]


 


(f)            LIBOR Interest Periods.  In lieu of making any payment pursuant to
this Section 5.2 or pursuant to Section 9.8(b) in
respect of any LIBOR Loan other than on the last day of the Interest Period
therefor so long as no Event of Default shall have occurred and be continuing,
the Borrower at its option may deposit with the Administrative Agent an amount
in Dollars equal to the amount of the LIBOR Loan to be prepaid and such LIBOR
Loan shall be repaid on the last day of the Interest Period therefor in the
required amount.  Such deposit shall be
held by the Administrative Agent in a corporate time deposit account established
on terms reasonably satisfactory to the Administrative Agent, earning interest
at the then-customary rate for accounts 


 


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of such type. 
Such deposit shall constitute cash collateral for the LIBOR Loans to be
so prepaid, provided that the Borrower may at any time direct that such
deposit be applied to make the applicable payment required pursuant to this Section 5.2.


 


(g)           [Reserved]


 


(h)           Rejection
Right.  The Borrower shall notify the
Administrative Agent in writing of any mandatory prepayment of Loans required
to be made pursuant to Section 5.2(a) at least three Business
Days prior to the date of such prepayment. 
Each such notice shall specify the date of such prepayment and provide a
reasonably detailed calculation of the amount of such prepayment.  The Administrative Agent will promptly notify
each Lender holding Loans of the contents of the Borrower’s prepayment notice
and of such Lender’s pro rata share
of the prepayment.  Each Lender may
reject all (but not less than all) of its pro rata share
of any mandatory prepayment (such declined amounts, the “Declined
Proceeds”) of Loans required to be made pursuant to Section 5.2(a) by
providing written notice (each, a “Rejection Notice”)
to the Administrative Agent and the Borrower no later than 5:00 p.m. (New
York time) one Business Day after the date of such Lender’s receipt of notice
from the Administrative Agent regarding such prepayment.  If a Lender fails to deliver a Rejection
Notice to the Administrative Agent within the time frame specified above or
such Rejection Notice fails to specify the principal amount of the Loans to be
rejected, any such failure will be deemed an acceptance of the total amount of
such mandatory prepayment of Loans.  Any
Declined Proceeds remaining thereafter shall be retained by the Borrower.


 


5.3.          Method and Place of Payment.


 


(a)           Except as otherwise specifically provided herein, all
payments under this Agreement shall be made by the Borrower, without set-off,
counterclaim or deduction of any kind, to the Administrative Agent for the
ratable account of the Lenders entitled thereto, not later than 2:00 p.m.
(New York City time), in each case, on the date when due and shall be made in
immediately available funds at the Administrative Agent’s Office or at such
other office as the Administrative Agent shall specify for such purpose by
notice to the Borrower, it being understood that written or facsimile notice by
the Borrower to the Administrative Agent to make a payment from the funds in
the Borrower’s account at the Administrative Agent’s Office shall constitute
the making of such payment to the extent of such funds held in such
account.  All repayments or prepayments
of any Loans (whether of principal, interest or otherwise) hereunder shall be
made in Dollars and all other payments under each Loan Document shall, unless
otherwise specified in such Loan Document, be made in Dollars.  The Administrative Agent will thereafter
cause to be distributed on the same day (if payment was actually received by
the Administrative Agent prior to 2:00 p.m. (New York City time) or,
otherwise, on the next Business Day) like funds relating to the payment of
principal or interest ratably to the Lenders entitled thereto.


 


(b)           Any payments under this Agreement that are made later than
2:00 p.m. (New York City time) may be deemed to have been made on the next
succeeding Business Day in the Administrative Agent’s sole discretion.  Whenever any payment to be made hereunder
shall be stated to be due on a day that is not a Business Day, in the
Administrative Agent’s sole 


 


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discretion, the due date thereof shall be
extended to the next succeeding Business Day and, with respect to payments of
principal, interest shall be payable during such extension at the applicable
rate in effect immediately prior to such extension.


 


5.4.          Net Payments.


 


(a)           Any and all payments made by or on behalf of the Borrower
or any Guarantor under this Agreement or any other Loan Document shall be made
free and clear of, and without deduction or withholding for or on account of,
any Indemnified Taxes; provided that if the Borrower any Guarantor or
the Administrative Agent shall be required by applicable Requirements of Law to
deduct or withhold any Indemnified Taxes from such payments, then (i) the
sum payable by the Borrower or Guarantor shall be increased as necessary so
that after making all required deductions and withholdings (including
deductions or withholdings applicable to additional sums payable under this Section 5.4)
the applicable Agent or Lender, as the case may be, receives an amount equal to
the sum it would have received had no such deductions or withholdings been
made, (ii) the Borrower, such Guarantor or the Administrative Agent, as
applicable, shall make such deductions or withholdings and (iii) the
Borrower, such Guarantor or the Administrative Agent, as applicable, shall
timely pay the full amount deducted or withheld to the relevant Governmental
Authority within the time allowed and in accordance with applicable Requirements
of Law.  Whenever any Indemnified Taxes
are payable by the Borrower or any Guarantor, as promptly as possible
thereafter, the Borrower or such Guarantor shall send to the Administrative
Agent for its own account or for the account of a Lender or Agent, as the case
may be, a certified copy of an original official receipt (or other evidence
acceptable to such Lender or Agent, acting reasonably) received by the Borrower
or such Guarantor showing payment thereof.


 


(b)           The Borrower shall timely pay and shall indemnify and hold
harmless each Agent and Lender (whether or not such Other Taxes were correctly
or legally imposed or asserted by the relevant Governmental Authority) with regard
to any Other Taxes.


 


(c)           The Borrower shall indemnify and hold harmless each Agent
and Lender within 20 Business Days after written demand therefor, for the full
amount of any Indemnified Taxes imposed on the Administrative Agent or such
Lender, as the case may be, on or with respect to any payment by or on account
of any obligation of the Borrower or any Guarantor hereunder or under any other
Loan Document (including Indemnified Taxes imposed or asserted on or
attributable to amounts payable under this Section 5.4) and any
reasonable expenses arising therefrom or with respect thereto, whether or not
such Indemnified Taxes were correctly or legally imposed or asserted by the
relevant Governmental Authority.  A
certificate setting forth reasonable detail as to the amount of such payment or
liability delivered to the Borrower by a Lender or Agent (as applicable) on its
own behalf or on behalf of a Lender shall be conclusive absent manifest error.


 


(d)           Each Non-U.S. Lender shall, to the extent it is legally
entitled to do so:


 


(i)            deliver to the
Borrower and the Administrative Agent prior to the date on which the first
payment to such Non-U.S. Lender is due hereunder  two copies of either (x) in the case of
a Non-U.S. Lender claiming exemption from U.S. federal withholding 


 


68





















 


tax
under Section 871(h) or 881(c) of the Code with respect to
payments of “portfolio interest”, United States Internal Revenue Service Form W-8BEN
(together with a certificate representing that such Non-U.S. Lender is not a
bank for purposes of Section 881(c) of the Code, is not a 10-percent
shareholder (within the meaning of Section 871(h)(3)(B) of the Code)
of the Borrower and is not a controlled foreign corporation related to the
Borrower (within the meaning of Section 864(d)(4) of the Code)), (y) Internal
Revenue Service Form W-8BEN or Form W-8ECI, in each case properly
completed and duly executed by such Non-U.S. Lender claiming complete exemption
from, or reduced rate of, U.S. Federal withholding tax on payments by the
Borrower under this Agreement or (z) Internal Revenue Service Form W-8IMY
and any attachments (including the forms described in subclauses (x) and
(y) above, as applicable); and


 


(ii)           deliver to the
Borrower and the Administrative Agent two further copies of any such form or certification
(or any applicable successor form) on or before the date that any such form or
certification expires or becomes obsolete, after the occurrence of any event
requiring a change in the most recent form previously delivered by it to the
Borrower and Administrative Agent and from time to time as reasonably requested
by the Borrower or the Administrative Agent;


 


unless in any such case any Change in Law has
occurred prior to the date on which any such delivery would otherwise be
required that renders any such form inapplicable or would prevent such Non-U.S.
Lender from duly completing and delivering any such form with respect to it and
such Non-U.S. Lender promptly so advises the Borrower and the Administrative Agent.  Each Person that shall become a Participant
pursuant to Section 13.6 or a Lender
pursuant to Section 13.6 shall, upon the effectiveness of the related
transfer, be required to provide all the forms and statements required pursuant
to this Section 5.4(d), provided that in the case of a
Participant such Participant shall furnish all such required forms and
statements to the Administrative Agent and to the Lender from which the related
participation shall have been purchased.


 


(e)           [Reserved].


 


(f)            Each Lender and Agent that is entitled to an exemption
from or reduction of non-U.S. withholding tax under the laws of the
jurisdiction in which the Borrower is organized, or any treaty to which such
jurisdiction is a party, with respect to payments under this Agreement or any
other Loan Document by the Borrower or Guarantor shall deliver to such Borrower
or Guarantor (with a copy to the applicable Administrative Agent), as
applicable, at the time or times prescribed by applicable law and as reasonably
requested by the Borrower or Guarantor, as applicable, such properly completed
and executed documentation prescribed by applicable law as will permit such
payments to be made without such withholding or at such reduced rate, provided
that such Lender or Agent is legally entitled to complete, execute and deliver
such documentation and such documentation is necessary in order for such
exemption or reduction to apply.


 


(g)           If any Lender or Agent, as applicable, determines, in its
sole discretion, that it has received and retained a refund of an Indemnified
Tax or Other Tax for which a payment has been made by the Borrower pursuant to
this Agreement, which refund in the good faith 


 


69





















 


judgment of such Lender or Agent, as the case
may be, is attributable to such payment made by the Borrower, then the Lender
or the Administrative Agent, as the case may be, shall reimburse the Borrower
for such amount (together with any interest received thereon) as the Lender or
Administrative Agent, as the case may be, determines in its sole discretion,
exercised in good faith, to be the proportion of the refund as will leave it,
after such reimbursement, in no better or worse after-tax financial position
(taking into account expenses or any taxes imposed on the refund) than it would
have been in if the payment had not been required; provided that the Borrower,
upon the request of the Lender or Agent, agrees to repay the amount paid over
to the Borrower (plus any penalties, interest or other charges imposed by the
relevant Governmental Authority) to the Lender or Agent in the event the Lender
or Agent is required to repay such refund to such Governmental Authority.  A Lender or Agent shall claim any refund of
Indemnified Taxes or Other Taxes that it determines in its sole discretion,
exercised in good faith, is available to it, unless it concludes in its sole
discretion that it would be adversely affected by making such a claim.  No Lender or Agent shall be obliged to
disclose any information regarding its tax affairs or computations or any other
information it deems confidential to any Loan Party in connection with this clause
(h) or any other provision of this Section 5.4.


 


(h)           If the Borrower determines that a reasonable basis exists
for contesting a Tax, each Lender or Agent, as the case may be, shall use
reasonable efforts to cooperate with the Borrower as the Borrower may
reasonably request in challenging such Tax. 
Subject to the provisions of Section 2.12, each Lender and
Agent agree to use reasonable efforts to cooperate with the Borrower as the
Borrower may reasonably request to minimize any amount payable by the Borrower
or any Guarantor pursuant to this Section 5.4.  The Borrower shall indemnify and hold each
Lender and Agent harmless against any out-of-pocket expenses incurred by such
Person in connection with any request made by the Borrower pursuant to this Section 5.4(h).  Nothing in this Section 5.4(h) shall
obligate any Lender or Agent to take any action that such Person, in its sole
judgment, determines may result in a material detriment to such Person.


 


(i)            Each Lender and Agent that is a United States person
under Section 7701(a)(30) of the Code (each, a “U.S. Lender”)
shall, to the extent it can legally do so, deliver to the Borrower and the
Administrative Agent two United States Internal Revenue Service Forms W-9 (or
substitute or successor form), properly completed and duly executed, certifying
that such Lender or Agent is exempt from United States federal backup
withholding tax (i) on or prior to the Original Closing Date (or on or
prior to the date it becomes a party to this Agreement), (ii) on or before
the date that such form expires or becomes obsolete, (iii) after the occurrence
of a change in the Agent’s or Lender’s circumstances requiring a change in the
most recent form previously delivered by it to the Borrower and the
Administrative Agent, and (iv) from time to time thereafter if reasonably
requested by the Borrower or the Administrative Agent.


 


(j)            The agreements in this Section 5.4 shall
survive the termination of this Agreement and the payment of the Loans and all
other amounts payable hereunder.


 


5.5.          Computations of Interest.  Interest on LIBOR Loans and ABR Loans shall
be calculated on the basis of a 360-day year for the actual days elapsed and
interest on overdue interest shall be calculated on the basis of a 365- (or
366-, as the case may be) day year for the actual days elapsed.


 


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5.6.          Limit on Rate of Interest.


 


(a)           No Payment Shall Exceed Lawful Rate.  Notwithstanding any other term of this
Agreement, the Borrower shall not be obliged to pay any interest or other
amounts under or in connection with this Agreement or otherwise in respect of
the Obligations in excess of the amount or rate permitted under or consistent
with any applicable law, rule or regulation.


 


(b)           Payment at Highest Lawful Rate.  If the Borrower is not obliged to make a
payment that it would otherwise be required to make, as a result of Section 5.6(a),
the Borrower shall make such payment to the maximum extent permitted by or
consistent with applicable laws, rules and regulations.


 


(c)           Adjustment if Any Payment Exceeds Lawful Rate.  If any provision of this Agreement or any of
the other Loan Documents would obligate the Borrower to make any payment of
interest or other amount payable to any Lender in an amount or calculated at a
rate that would be prohibited by any applicable law, rule or regulation,
then notwithstanding such provision, such amount or rate shall be deemed to
have been adjusted with retroactive effect to the maximum amount or rate of
interest, as the case may be, as would not be so prohibited by law, such
adjustment to be effected, to the extent necessary, by reducing the amount or
rate of interest required to be paid by the Borrower to the affected Lender
under Section 2.8.


 


Notwithstanding the foregoing, and after giving
effect to all adjustments contemplated thereby, if any Lender shall have
received from the Borrower an amount in excess of the maximum permitted by any
applicable law, rule or regulation, then the Borrower shall be entitled,
by notice in writing to the Administrative Agent to obtain reimbursement from
that Lender in an amount equal to such excess, and pending such reimbursement,
such amount shall be deemed to be an amount payable by that Lender to the
Borrower.


 


SECTION 6.                 Conditions Precedent to Initial Borrowing Under
Original Senior Unsecured Loan Agreement.


 


The initial Borrowing under the Original Senior Unsecured
Loan Agreement was subject to the satisfaction of the following conditions
precedent, except as otherwise agreed between the Borrower and the
Administrative Agent.  The Borrower and
the Lenders agree that all such conditions were satisfied or waived at the time
of the Original Closing Date.


 


6.1.          Loan Documents. 
The Administrative Agent received:


 


(a)           this Agreement, executed and delivered by a duly
authorized officer of the Borrower and each Lender; and


 


(b)           the Guarantee, executed and delivered by a duly authorized
officer of each Guarantor.


 


6.2.          Guarantee. 
The Guarantee was in full force and effect.


 


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6.3.          Legal Opinions. 
The Administrative Agent received the executed legal opinions of (a) Simpson
Thacher & Bartlett LLP, special New York counsel to the Borrower,
substantially in the form of Exhibit E-1, (b) David Money,
General Counsel of the Borrower, substantially in the form of Exhibit E-2,
and (c) local counsel to the Borrower and the Administrative Agent in the
jurisdictions listed on Schedule 6.3 in form and substance satisfactory
to the Administrative Agent.  The Borrower,
the other Loan Parties and the Administrative Agent hereby instruct such
counsel to deliver such legal opinions.


 


6.4.          Notice of Borrowing. 
Prior to the making of each Senior Interim Loan, the Administrative
Agent received a Notice of Borrowing (whether in writing or by telephone)
meeting the requirements of Section 2.3.


 


6.5.          Equity Investments. 
Equity Investments, which, to the extent constituting Stock other than
common Stock, were on terms and conditions and pursuant to documentation reasonably
satisfactory to the Joint Lead Arrangers and Bookrunners to the extent material
to the interests of the Lenders, in an amount not less than the Minimum Equity
Amount shall have been made.


 


6.6.          Closing Certificates.  The Administrative Agent received a
certificate of the Loan Parties, dated the Original Closing Date, substantially
in the form of Exhibit F, with appropriate insertions, executed by
the President or any Vice President and the Secretary or any Assistant
Secretary of each Loan Party, and attaching the documents referred to in Section 6.7.


 


6.7.          Authorization of Proceedings of Each Loan Party.  The Administrative Agent received a copy of
the resolutions, in form and substance satisfactory to the Administrative
Agent, of the board of directors or other managers of each Loan Party (or a
duly authorized committee thereof) authorizing (a) the execution, delivery
and performance of the Loan Documents (and any agreements relating thereto) to
which it is a party and (b) in the case of the Borrower, the extensions of
credit contemplated hereunder.


 


6.8.          Fees.  The
Agents received the fees in the amounts previously agreed in writing by the
Agents to be received on the Original Closing Date and all expenses (including
the reasonable fees, disbursements and other charges of counsel) payable by the
Loan Parties for which invoices have been presented prior to the Original
Closing Date shall have been paid.


 


6.9.          Representations and Warranties.  On the Original Closing Date, representations
and warranties made by the Loan Parties in Section 8.1(a), Section 8.2,
Section 8.5 and Section 8.7, as they relate to the Loan
Parties at such time, shall have been true and correct in all material
respects.


 


6.10.        Solvency Certificate. 
On the Original Closing Date, the Administrative Agent received a
certificate from an Authorized Officer of the Borrower to the effect that after
giving effect to the consummation of the Transaction, the Borrower on a
consolidated basis with its Subsidiaries is Solvent.


 


6.11.        Merger. 
Concurrently with the initial Credit Event hereunder, the Merger was
consummated in accordance with the terms of the Acquisition Agreement (or the
Lead Arrangers


 


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shall be reasonably
satisfied with the arrangements in place for the consummation of the Merger
reasonably promptly after the initial Credit Event hereunder and shall have
received confirmation from representatives of the Borrower that such actions
shall be taken promptly after the initial Credit Event hereunder), without
giving effect to any amendments or waivers thereto that are materially adverse
to the Lenders (including, without limitation, the definition of, and representations,
warranties and conditions relating to the absence of any, “Material Adverse
Change” or Material Adverse Effect on the Company” therein) without the reasonable
consent of the Joint Lead Arrangers and Bookrunners.


 


6.12.        Patriot Act.  On
the Original Closing Date, the Joint Lead Arrangers and Bookrunners received
such documentation and information as was reasonably requested in writing at
least 10 days prior to the Original Closing Date by the Administrative Agent
about the Borrower and the Guarantors in respect of applicable “know your
customer” and anti-money laundering rules and regulations, including,
without limitation, the Patriot Act.


 


The acceptance of the benefits of the Borrowing on
the Original Closing Date shall have constituted a representation and warranty
on such date by each Loan Party to each of the Lenders that all the applicable
conditions specified in Section 6 above have been satisfied as of that time.


 


SECTION 7.                 Conditions Precedent to
Entering This Agreement


 


The effectiveness of this Agreement shall be subject
to the execution and delivery of this Agreement by a duly authorized officer of
the Borrower and each Lender on the Closing Date.


 


SECTION 8.                 Representations, Warranties and Agreements


 


In order to induce the Lenders to enter into this
Agreement and to make the Loans as provided for herein, the Borrower made (on
and as of the Original Closing Date) the following representations and
warranties to, and agreements with, the Lenders, all of which shall survive the
execution and delivery of the Original Senior Unsecured Interim Loan Agreement
and the making of the Loans (it being understood that the following
representations and warranties shall be deemed made with respect to any Foreign
Subsidiary only to the extent relevant under applicable law):


 


8.1.          Corporate Status. 
The Borrower and each Material Subsidiary (a) is a duly organized
and validly existing corporation or other entity in good standing under the
laws of the jurisdiction of its organization and has the corporate or other
organizational power and authority to own its property and assets and to
transact the business in which it is engaged and (b) has duly qualified
and is authorized to do business and is in good standing (if applicable) in all
jurisdictions where it is required to be so qualified, except where the failure
to be so qualified could not reasonably be expected to result in a Material
Adverse Effect.


 


8.2.          Corporate Power and Authority.  Each Loan Party has the corporate or other
organizational power and authority to execute, deliver and carry out the terms
and provisions of the Loan Documents to which it is a party and has taken all
necessary corporate or other 


 


73

















 


organizational action to
authorize the execution, delivery and performance of the Loan Documents to
which it is a party.  Each Loan Party has
duly executed and delivered each Loan Document to which it is a party and each
such Loan Document constitutes the legal, valid and binding obligation of such
Loan Party enforceable in accordance with its terms, except as the enforceability
thereof may be limited by bankruptcy, insolvency or similar laws affecting
creditors’ rights generally and subject to general principles of equity.


 


8.3.          No
Violation.  Neither the
execution, delivery or performance by any Loan Party of the Loan Documents to
which it is a party nor compliance with the terms and provisions thereof nor
the consummation of the Merger and the other transactions contemplated hereby
or thereby will (a) contravene any applicable provision of any material
law, statute, rule, regulation, order, writ, injunction or decree of any court
or governmental instrumentality, (b) except as set forth on Schedule
8.3, result in any breach of any of the terms, covenants, conditions or
provisions of, or constitute a default under, or result in the creation or
imposition of (or the obligation to create or impose) any Lien upon any of the
property or assets of such Loan Party or any of the Restricted Subsidiaries
(other than Liens created under the Senior Secured Credit Agreement and the
documents related thereto) pursuant to, the terms of any material indenture,
loan agreement, lease agreement, mortgage, deed of trust, agreement or other
material instrument to which such Loan Party or any of the Restricted Subsidiaries
is a party or by which it or any of its property or assets is bound (any such
term, covenant, condition or provision, a “Contractual Requirement”)
other than any such breach, default or Lien that could not reasonably be expected
to result in a Material Adverse Effect or (c) violate any provision of the
certificate of incorporation, by-laws or other organizational documents of such
Loan Party or any of the Restricted Subsidiaries.


 


8.4.          Litigation. 
Except as set forth on Schedule 8.4, there are no actions, suits
or proceedings (including Environmental Claims) pending or, to the knowledge of
the Borrower, threatened with respect to the Borrower or any of its
Subsidiaries that could reasonably be expected to result in a Material Adverse
Effect.


 


8.5.          Margin Regulations. 
Neither the making of any Loan hereunder nor the use of the proceeds
thereof will violate the provisions of Regulation T, U or X of the Board.


 


8.6.          Governmental Approvals.  The execution, delivery and performance of the
Acquisition Agreement or any Loan Document do not require any consent or
approval of, registration or filing with, or other action by, any Governmental
Authority, except for (i) such as have been obtained or made and are in
full force and effect and (ii) such licenses, approvals, authorizations or
consents the failure of which to obtain could not reasonably be expected to
have a Material Adverse Effect.


 


8.7.          Investment Company Act.  The Borrower is not an “investment company”
within the meaning of the Investment Company Act of 1940, as amended.


 


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8.8.          True and Complete Disclosure.


 


(a)           None of the written factual information and written data
(taken as a whole) heretofore or contemporaneously furnished by or on behalf of
the Borrower, any of the Subsidiaries or any of their respective authorized
representatives to the Administrative Agent, any Joint Lead Arranger and
Bookrunner and/or any Lender on or before the Original Closing Date (including
all such information and data contained in the Loan Documents) for purposes of
or in connection with this Agreement or any transaction contemplated herein
contained any untrue statement of any material fact or omitted to state any
material fact necessary to make such information and data (taken as a whole)
not misleading at such time in light of the circumstances under which such
information or data was furnished, it being understood and agreed that for purposes
of this Section 8.8(a), such factual information and data shall not
include pro forma financial information,
projections or estimates (including financial estimates, forecasts and other forward-looking
information) and information of a general economic or general industry nature.


 


(b)           The projections (including financial estimates, forecasts
and other forward-looking information) contained in the information and data
referred to in paragraph (a) above were based on good faith estimates and
assumptions believed by such Persons to be reasonable at the time made, it
being recognized by the Lenders that such projections as to future events are
not to be viewed as facts and that actual results during the period or periods
covered by any such projections may differ from the projected results.


 


8.9.          Financial Condition; Financial Statements.  The Historical Financial Statements present
fairly in all material respects the consolidated financial position of the Borrower
at the respective dates of said information, statements and results of
operations for the periods covered thereby. 
The unaudited pro forma
consolidated balance sheet of the Borrower and its Subsidiaries as at June 30,
2007 (including the notes thereto) (the “Pro Forma Balance Sheet”)
and the unaudited pro forma consolidated statement
of operations of the Borrower and its Subsidiaries for the 12-month period
ending on such date (together with the Pro Forma Balance Sheet, the “Pro Forma Financial Statements”), copies of which have
heretofore been furnished to the Administrative Agent, have been prepared based
on (x) the Historical Financial Statements and (y) the unaudited
historical consolidated financial information described in clause (a) of
this Section 8.9 and have been prepared in good faith, based on
assumptions believed by the Borrower to be reasonable as of the date of
delivery thereof, and present fairly in all material respects on a pro forma basis the estimated financial position of the
Borrower and its Subsidiaries as at June 30, 2007 and their estimated results
of operations for the period covered thereby. 
The financial statements referred to in this Section 8.9
have been prepared in accordance with GAAP consistently applied except to the
extent provided in the notes to said financial statements.  Immediately after the Original Closing Date,
there had been no Material Adverse Effect.


 


8.10.        Tax Matters. 
Except as could not reasonably be expected to have a Material Adverse
Effect, (a) each of the Borrower and the Subsidiaries has filed all
federal income tax returns and all other tax returns, domestic and foreign,
required to be filed by it and has timely paid all taxes payable by it (whether
or not shown on a tax return) that have become due, (b) the Borrower and
each of the Subsidiaries have paid, or have provided adequate reserves (in the
good faith judgment of management of the Borrower or such Subsidiary) in
accordance with


 


75

















 


GAAP for the payment of, all
federal, state, provincial and foreign taxes applicable for the current fiscal
year to the Original Closing Date and (c) the Borrower and each of its
Subsidiaries has withheld amounts from their respective employees for all
periods in compliance with the tax, social, security and unemployment
withholding provisions of applicable law and timely paid such withholdings to
the respective Governmental Authorities.


 


8.11.        Compliance
with ERISA.


 


(a)           Each Plan is in compliance with ERISA, the Code and any
applicable Requirement of Law; no Reportable Event has occurred (or is
reasonably likely to occur) with respect to any Plan; no Plan is insolvent or
in reorganization (or is reasonably likely to be insolvent or in
reorganization), and no written notice of any such insolvency or reorganization
has been given to the Borrower or any ERISA Affiliate; no Plan (other than a
Multiemployer Plan) has an accumulated or waived funding deficiency (or is
reasonably likely to have such a deficiency); on and after the effectiveness of
the Pension Act, each Plan that is subject to Title IV of ERISA has satisfied
the minimum funding standards (within the meaning of Section 412 of the
Code or Section 302 of ERISA) applicable to such Plan, and there has been
no determination that any such Plan is, or is expected to be, in “at risk”
status (within the meaning of Section 4010(d)(2) of ERISA); none of
the Borrower or any ERISA Affiliate has incurred (or is reasonably likely to
incur) any liability to or on account of a Plan pursuant to Section 409,
502(i), 502(1), 515, 4062, 4063, 4064, 4069, 4201 or 4204 of ERISA or Section 4971
or 4975 of the Code or has been notified in writing that it will incur any
liability under any of the foregoing Sections with respect to any Plan; no
proceedings have been instituted (or are reasonably likely to be instituted) to
terminate or to reorganize any Plan or to appoint a trustee to administer any
Plan, and no written notice of any such proceedings has been given to the
Borrower or any ERISA Affiliate; and no lien imposed under the Code or ERISA on
the assets of the Borrower or any ERISA Affiliate exists (or is reasonably
likely to exist) nor has the Borrower or any ERISA Affiliate been notified in
writing that such a lien will be imposed on the assets of the Borrower or any
ERISA Affiliate on account of any Plan, except to the extent that a breach of
any of the representations, warranties or agreements in this Section 8.11(a) would
not result, individually or in the aggregate, in an amount of liability that
would be reasonably likely to have a Material Adverse Effect.  No Plan (other than a Multiemployer Plan) has
an Unfunded Current Liability that would, individually or when taken together
with any other liabilities referenced in this Section 8.11(a), be
reasonably likely to have a Material Adverse Effect.  With respect to Plans that are Multiemployer
Plans (as defined in Section 3(37) of ERISA), the representations and
warranties in this Section 8.11(a), other than any made with
respect to (i) liability under Section 4201 or 4204 of ERISA or (ii) liability
for termination or reorganization of such Plans under ERISA, are made to the
best knowledge of the Borrower.


 


(b)           All Foreign Plans are in compliance with, and have been
established, administered and operated in accordance with, the terms of such
Foreign Plans and applicable law, except for any failure to so comply,
establish, administer or operate the Foreign Plans as would not reasonably be
expected to have a Material Adverse Effect. 
All contributions or other payments which are due with respect to each
Foreign Plan have been made in full and there are no funding deficiencies
thereunder, except to the extent any such events would not, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect.


 


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8.12.        Subsidiaries.  Schedule
8.12 lists each Subsidiary of the Borrower (and the direct and indirect
ownership interest of the Borrower therein), in each case existing on the
Original Closing Date.


 


8.13.        Intellectual Property. 
The Borrower and each of the Restricted Subsidiaries have obtained all
intellectual property, free from burdensome restrictions, that is necessary for
the operation of their respective businesses as currently conducted and as
proposed to be conducted, except where the failure to obtain any such rights
could not reasonably be expected to have a Material Adverse Effect.


 


8.14.        Environmental Laws.


 


(a)           Except as could not reasonably be expected to have a
Material Adverse Effect:  (i) the
Borrower and each of the Subsidiaries and all Real Estate are in compliance
with all Environmental Laws; (ii) neither the Borrower nor any Subsidiary
is subject to any Environmental Claim or any other liability under any
Environmental Law; (iii) neither the Borrower nor any Subsidiary is
conducting any investigation, removal, remedial or other corrective action pursuant
to any Environmental Law at any location; and (iv) no underground storage
tank or related piping, or any impoundment or other disposal area containing
Hazardous Materials is located at, on or under any Real Estate currently owned
or leased by the Borrower or any of its Subsidiaries.


 


(b)           Neither the Borrower nor any of the Subsidiaries has
treated, stored, transported, released or disposed or arranged for disposal or
transport for disposal of Hazardous Materials at, on, under or from any
currently or formerly owned or leased Real Estate or facility in a manner that
could reasonably be expected to have a Material Adverse Effect.


 


8.15.        Properties.  The
Borrower and each of the Subsidiaries have good and marketable title to or
valid leasehold interests in all properties that are necessary for the operation
of their respective businesses as currently conducted and as proposed to be
conducted, free and clear of all Liens (other than any Liens permitted by this
Agreement) and except where the failure to have such good title could not
reasonably be expected to have a Material Adverse Effect.


 


8.16.        Solvency.  On
the Original Closing Date (after giving effect to the Transaction), immediately
following the making of each Loan and after giving effect to the application of
the proceeds of such Loans, the Borrower on a consolidated basis with its
Subsidiaries will be Solvent.


 


SECTION 9.                 Covenants


 


9.1.          Reports and Other Information.


 


(a)           Notwithstanding that the Borrower may not be subject to
the reporting requirements of Section 13 or 15(d) of the Exchange Act
or otherwise report on an annual and quarterly basis on forms provided for such
annual and quarterly reporting pursuant to rules and regulations
promulgated by the SEC, the Borrower shall file with the SEC (and make
available to the Administrative Agent and the Lenders (without exhibits),
without cost to any Lender, within 


 


77





















 


15 days after the Borrower files or would be
required to file them with the SEC) from and after the Original Closing Date,


 


(i)            within 90 days (or
any other time period then in effect under the rules and regulations of
the Exchange Act with respect to the filing of a Form 10-K by a
non-accelerated filer) after the end of each fiscal year, annual reports on Form 10-K,
or any successor or comparable form, containing the information required to be
contained therein, or required in such successor or comparable form;


 


(ii)           within 45 days
after the end of each of the first three fiscal quarters of each fiscal year,
reports on Form 10-Q containing all quarterly information that would be
required to be contained in Form 10-Q, or any successor or comparable
form;


 


(iii)          promptly from time
to time after the occurrence of an event required to be therein reported, such
other reports on Form 8-K, or any successor or comparable form; and


 


(iv)          any other
information, documents and other reports which the Borrower would be required
to file with the SEC if it were subject to Section 13 or 15(d) of the
Exchange Act;


 


in each case in a manner that complies in all
material respects with the requirements specified in such form; provided that the Borrower shall not
be so obligated to file such reports with the SEC if the SEC does not permit
such filing, in which event the Borrower shall make available such information
to the Administrative Agent and the Lenders, which obligation may be satisfied
by posting such reports on the website of the Borrower and its Subsidiaries and
the Borrower shall promptly notify the Administrative Agent when such reports
are posted on the website of the Borrower, in each case within 15 days after
the time the Borrower would be required to file such information with the SEC
if it were subject to Section 13 or 15(d) of the Exchange Act.


 


(b)           Notwithstanding the foregoing, the requirements of Section 9.1(a),
shall be deemed satisfied (1) by the filing with the SEC of a registration
statement, and any amendments thereto, with such financial information that
satisfies Regulation S-X, subject to exceptions consistent with the
presentation of financial information in an offering memorandum relating to securities
sold in reliance on Rule 144A of the Securities Act, to the extent filed
within the times specified in Section 9.1(a), or (2) by
posting reports that would be required to be filed substantially in the form
required by the SEC on the Borrower’s website (or that of any of its parent
companies) or providing such reports to the Administrative Agent within 15 days
after the time the Borrower would be required to file such information with the
SEC if it were subject to Section 13 or 15(d) of the Exchange Act or
the financial information that would be required to be included in such
reports.  Additionally, in the event that
any direct or indirect parent company of the Borrower becomes a Guarantor of
the Loans, the Borrower may satisfy its obligations under this Section 9.1
with respect to financial information relating to the Borrower by furnishing financial
information relating to such parent; provided that the same is
accompanied by consolidating information that explains in reasonable detail the
differences between the information relating 


 


78





















 


to such parent, on the one hand, and the
information relating to the Borrower and its Restricted Subsidiaries on a standalone
basis, on the other hand.


 


9.2.          Compliance Certificate.


 


(a)           The Borrower shall deliver to the Administrative Agent,
within 90 days after the end of each fiscal year ending after the Original
Closing Date, a certificate from the principal executive officer, principal
financial officer or principal accounting officer stating that a review of the
activities of the Borrower and its Restricted Subsidiaries during the preceding
fiscal year has been made under the supervision of the signing Officer with a
view to determining whether the Borrower has kept, observed, performed and
fulfilled its obligations under this Agreement, and further stating, as to such
Officer signing such certificate, that to the best of his or her knowledge the
Borrower has kept, observed, performed and fulfilled each and every condition
and covenant contained in this Agreement and is not in default in the
performance or observance of any of the terms, provisions, covenants and
conditions of this Agreement (or, if a Default shall have occurred, describing
all such Defaults of which he or she may have knowledge and what action the
Borrower is taking or proposes to take with respect thereto).


 


(b)           When any Default has occurred and is continuing under this
Agreement, or if the Administrative Agent or the holder of any other evidence
of Indebtedness of the Borrower or any Subsidiary gives any notice or takes any
other action with respect to a claimed Default, the Borrower shall promptly
(which shall be no more than five (5) Business Days) deliver to the
Administrative Agent by registered or certified mail or by facsimile
transmission an Officer’s Certificate specifying such event and what action the
Borrower proposes to take with respect thereto.


 


9.3.          Taxes.  The
Borrower shall pay, and shall cause each of its Restricted Subsidiaries to pay,
prior to delinquency, all material taxes, assessments, and governmental levies
except such as are contested in good faith and by appropriate negotiations or
proceedings or where the failure to effect such payment is not adverse in any
material respect to the Lenders.


 


9.4.          Stay, Extension and Usury Laws.  The Borrower and each of the Guarantors covenant
(to the extent that they may lawfully do so) that they shall not at any time
insist upon, plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay, extension or usury law wherever enacted, now or at any
time hereafter in force, that may affect the covenants or the performance of
this Agreement; and the Borrower and each of the Guarantors (to the extent that
they may lawfully do so) hereby expressly waive all benefit or advantage of any
such law, and covenant that they shall not, by resort to any such law, hinder,
delay or impede the execution of any power herein granted to the Administrative
Agent, but shall suffer and permit the execution of every such power as though
no such law has been enacted.


 


9.5.          Limitation on Restricted Payments.


 


(a)           The Borrower shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly:


 


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(I)            declare or pay any dividend or make any payment or
distribution on account of the Borrower’s, or any of its Restricted
Subsidiaries’ Equity Interests, including any dividend or distribution payable
in connection with any merger or consolidation, other than:


 


(A)          dividends
or distributions by the Borrower payable solely in Equity Interests (other than
Disqualified Stock) of the Borrower; or


 


(B)           dividends
or distributions by a Restricted Subsidiary so long as, in the case of any
dividend or distribution payable on or in respect of any class or series of
securities issued by a Restricted Subsidiary other than a Wholly Owned
Subsidiary, the Borrower or a Restricted Subsidiary receives at least its pro rata share of such dividend or distribution in
accordance with its Equity Interests in such class or series of securities;


 


(II)           purchase, redeem, defease or otherwise acquire or retire
for value any Equity Interests of the Borrower or any direct or indirect parent
of the Borrower, including in connection with any merger or consolidation;


 


(III)         make any principal payment on, or redeem, repurchase,
defease or otherwise acquire or retire for value in each case, prior to any
scheduled repayment, sinking fund payment or maturity, any Subordinated
Indebtedness, other than:


 


(A)          Indebtedness
permitted under clauses (7) and (8) of Section 9.7(b) hereof;
or


 


(B)           the
purchase, repurchase or other acquisition of Subordinated Indebtedness
purchased in anticipation of satisfying a sinking fund obligation, principal
installment or final maturity, in each case due within one year of the date of
purchase, repurchase or acquisition; or


 


 (IV)         make any
Restricted Investment


 


(all such payments and other actions set
forth in clauses (I) through (IV) above (other than any
exception thereto) being collectively referred to as “Restricted
Payments”), unless, at the time of such Restricted Payment:


 


(1)           no Default shall
have occurred and be continuing or would occur as a consequence thereof;


 


(2)           immediately after
giving effect to such transaction on a pro forma  basis, the Borrower could incur $1.00 of additional
Indebtedness under Section 9.7(a) hereof; and


 


(3)           such Restricted
Payment, together with the aggregate amount of all other Restricted Payments
made by the Borrower and its Restricted Subsidiaries after the Original Closing
Date (including Restricted Payments permitted by clauses (1), (2) (with



 


80





















 


respect
to the payment of dividends on Refunding Capital Stock pursuant to clause (b) thereof
only), (6)(c), (9) and (14) of Section 9.5(b) hereof but
excluding all other Restricted Payments permitted by Section 9.5(b) hereof,
is less than the sum of (without duplication):


 


(a)           50% of the
Consolidated Net Income of the Borrower for the period (taken as one accounting
period) beginning July 1, 2007, to the end of the Borrower’s most recently
ended fiscal quarter for which internal financial statements are available at
the time of such Restricted Payment, or, in the case such Consolidated Net
Income for such period is a deficit, minus 100% of such deficit; plus


 


(b)           100% of the
aggregate net cash proceeds and the fair market value, as determined in good
faith by the Borrower, of marketable securities or other property received by
the Borrower since immediately after the Original Closing Date (other than net
cash proceeds to the extent such net cash proceeds have been used to incur
Indebtedness, Disqualified Stock or Preferred Stock pursuant to clause (12)(a) of
Section 9.7(b) hereof) from the issue or sale of:


 


(i)            (A) Equity Interests of the Borrower, including Treasury
Capital Stock (as defined below), but excluding cash proceeds and the fair
market value, as determined in good faith by the Borrower, of marketable securities
or other property received from the sale of:


 


(x)            Equity
Interests to any former, current or future employees, directors or consultants
of the Borrower, any direct or indirect parent company of the Borrower and the
Borrower’s Subsidiaries after the Original Closing Date to the extent such
amounts have been applied to Restricted Payments made in accordance with clause
(4) of Section 9.5(b); and


 


(y)           Designated
Preferred Stock; and


 


(B)           to
the extent such net cash proceeds are actually contributed to the Borrower,
Equity Interests of the Borrower’s direct or indirect parent companies
(excluding contributions of the proceeds from the sale of Designated Preferred
Stock of such companies or contributions to the extent such amounts have been
applied to Restricted Payments made in accordance with clause (4) of
Section 9.5(b) hereof); or


 


(ii)           debt securities of the Borrower that have been converted
into or exchanged for such Equity Interests of the Borrower;


 


provided, however,
that this clause (b) shall not include the proceeds from (V) Refunding
Capital Stock, (W) Equity Interests or convertible debt securities of the
Borrower sold to a Restricted Subsidiary, as the case may be, (X) Disqualified


 


81

















 


Stock or debt securities
that have been converted into Disqualified Stock or (Y) Excluded
Contributions; plus


 


(c)           100% of the
aggregate amount of cash and the fair market value, as determined in good faith
by the Borrower, of marketable securities or other property contributed to the
capital of the Borrower following the Original Closing Date (other than net
cash proceeds to the extent such net cash proceeds (i) have been used to
incur Indebtedness, Disqualified Stock or Preferred Stock pursuant to clause (12)(a) of Section 9.7(b) hereof, (ii) are
contributed by a Restricted Subsidiary, or (iii) constitute Excluded
Contributions); plus


 


(d)           100% of the
aggregate amount received in cash and the fair market value, as determined in
good faith by the Borrower, of marketable securities or other property received
by means of:


 


(i)            the sale or other disposition (other than to the Borrower
or a Restricted Subsidiary) of Restricted Investments made by the Borrower or
its Restricted Subsidiaries and repurchases and redemptions of such Restricted
Investments from the Borrower or its Restricted Subsidiaries and repayments of
loans or advances, and releases of guarantees, which constitute Restricted
Investments by the Borrower or its Restricted Subsidiaries, in each case after
the Original Closing Date; or


 


(ii)           the sale (other than to the Borrower or a Restricted
Subsidiary) of the stock of an Unrestricted Subsidiary or a distribution from
an Unrestricted Subsidiary (other than in each case to the extent the Investment
in such Unrestricted Subsidiary was made by the Borrower or a Restricted Subsidiary
pursuant to clause (7) of Section 9.5(b) hereof or
to the extent such Investment constituted a Permitted Investment) or a dividend
from an Unrestricted Subsidiary after the Original Closing Date; plus


 


(e)           in the case of the
redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary after
the Original Closing Date, the fair market value of the Investment in such Unrestricted
Subsidiary, as determined by the Borrower in good faith (or if such fair market
value exceeds $250.0 million, in writing by an Independent Financial Advisor),
at the time of the redesignation of such Unrestricted Subsidiary as a
Restricted Subsidiary other than to the extent the Investment in such
Unrestricted Subsidiary was made by the Borrower or a Restricted Subsidiary
pursuant to clause (7) of Section 9.5(b) or to the
extent such Investment constituted a Permitted Investment.


 


(b)           The foregoing provisions of Section 9.5(a) shall
not prohibit:


 


(1)           the
payment of any dividend or distribution within 60 days after the date of
declaration thereof, if at the date of declaration such payment would have
complied with the provisions of this Agreement;


 


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(2)           (a) the
redemption, repurchase, defeasance, retirement or other acquisition of any
Equity Interests (“Treasury Capital Stock”)
or Subordinated Indebtedness of the Borrower or any Equity Interests of any
direct or indirect parent company of the Borrower, in exchange for, or out of
the proceeds of the substantially concurrent sale (other than to a Restricted
Subsidiary) of, Equity Interests of the Borrower or any direct or indirect
parent company of the Borrower to the extent contributed to the Borrower (in
each case, other than any Disqualified Stock) (“Refunding
Capital Stock”) and (b) if immediately prior to the retirement
of Treasury Capital Stock, the declaration and payment of dividends thereon was
permitted under clause (6) of this Section 9.5(b), the
declaration and payment of dividends on the Refunding Capital Stock (other than
Refunding Capital Stock the proceeds of which were used to redeem, repurchase,
retire or otherwise acquire any Equity Interests of any direct or indirect
parent company of the Borrower) in an aggregate amount per year no greater than
the aggregate amount of dividends per annum that
were declarable and payable on such Treasury Capital Stock immediately prior to
such retirement;


 


(3)           the
defeasance, redemption, repurchase or other acquisition or retirement of
Subordinated Indebtedness of the Borrower or any Restricted Subsidiary made in
exchange for, or out of the proceeds of the substantially concurrent sale of,
new Indebtedness of the Borrower or any Restricted Subsidiary, as the case may
be, which is incurred in compliance with Section 9.7 hereof so long
as:


 


(a)           the
principal amount (or accreted value) of such new Indebtedness does not exceed
the principal amount of (or accreted value, if applicable), plus any accrued
and unpaid interest on, the Subordinated Indebtedness being so redeemed,
repurchased, defeased, acquired or retired for value, plus the amount of any
reasonable premium (including reasonable tender premiums), defeasance costs and
any reasonable fees and expenses incurred in connection with the issuance of
such new Indebtedness;


 


(b)           such
new Indebtedness is subordinated to the Loans or the applicable Guarantee at
least to the same extent as such Subordinated Indebtedness so purchased,
exchanged, redeemed, repurchased, defeased, acquired or retired for value;


 


(c)           such
new Indebtedness has a final scheduled maturity date equal to or later than the
final scheduled maturity date of the Subordinated Indebtedness being so
redeemed, repurchased, defeased, acquired or retired; and


 


(d)           such
new Indebtedness has a Weighted Average Life to Maturity equal to or greater
than the remaining Weighted Average Life to Maturity of the Subordinated
Indebtedness being so redeemed, repurchased, defeased, acquired or retired;


 


(4)           a
Restricted Payment to pay for the repurchase, retirement or other acquisition
or retirement for value of Equity Interests (other than Disqualified Stock) of
the 


 


83

















 


Borrower or any of its
direct or indirect parent companies held by any future, present or former
employee, director or consultant of the Borrower, any of its Subsidiaries or
any of its direct or indirect parent companies pursuant to any management
equity plan or stock option plan or any other management or employee benefit
plan or agreement, including any Equity Interests rolled over by management of
the Borrower or any of its direct or indirect parent companies in connection
with the Transaction; provided, however, that the aggregate
Restricted Payments made under this clause (4) do not exceed in any
calendar year $75.0 million (which shall increase to $150.0 million subsequent
to the consummation of an underwritten public Equity Offering by the Borrower
or any direct or indirect parent entity of the Borrower) (with unused amounts
in any calendar year being carried over to succeeding calendar years subject to
a maximum (without giving effect to the following proviso) of $150.0 million in
any calendar year (which shall increase to $300.0 million subsequent to the
consummation of an underwritten public Equity Offering by the Borrower or any
direct or indirect parent corporation of the Borrower)); provided  further that such amount in any
calendar year may be increased by an amount not to exceed:


 


(a)           the
cash proceeds from the sale of Equity Interests (other than Disqualified Stock)
of the Borrower and, to the extent contributed to the Borrower, Equity
Interests of any of the Borrower’s direct or indirect parent companies, in each
case to members of management, directors or consultants of the Borrower, any of
its Subsidiaries or any of its direct or indirect parent companies that occurs
after the Original Closing Date, to the extent the cash proceeds from the sale
of such Equity Interests have not otherwise been applied to the payment of Restricted
Payments by virtue of clause (3) of Section 9.5(a); plus


 


(b)           the
cash proceeds of key man life insurance policies received by the Borrower or
its Restricted Subsidiaries after the Original Closing Date; less


 


(c)           the
amount of any Restricted Payments previously made with the cash proceeds
described in clauses (a) and (b) of this clause (4);


 


and provided, further,
that cancellation of Indebtedness owing to the Borrower or any Restricted
Subsidiary from members of management of the Borrower, any of the Borrower’s
direct or indirect parent companies or any of the Borrower’s Restricted
Subsidiaries in connection with a repurchase of Equity Interests of the
Borrower or any of its direct or indirect parent companies will not be deemed
to constitute a Restricted Payment for purposes of this Section 9.5
or any other provision of this Agreement;


 


(5)           the
declaration and payment of dividends to holders of any class or series of
Disqualified Stock of the Borrower or any of its Restricted Subsidiaries or any
class or series of Preferred Stock of any Restricted Subsidiary or any class or
series of Preferred Stock of a Restricted Subsidiary issued in accordance with Section 9.7
hereof to the extent such dividends are included in the definition of “Fixed
Charges”;


 


84
















 


(6)           (a)           the declaration and payment of
dividends to holders of any class or series of Designated Preferred Stock
(other than Disqualified Stock) issued by the Borrower after the Closing Date;


 


(b)           the
declaration and payment of dividends to a direct or indirect parent company of
the Borrower, the proceeds of which will be used to fund the payment of
dividends to holders of any class or series of Designated Preferred Stock
(other than Disqualified Stock) of such parent corporation issued after the
Closing Date; provided that the
amount of dividends paid pursuant to this clause (b) shall not exceed the
aggregate amount of cash actually contributed to the Borrower from the sale of
such Designated Preferred Stock; or


 


(c)           the
declaration and payment of dividends on Refunding Capital Stock that is
Preferred Stock in excess of the dividends declarable and payable thereon
pursuant to clause
(2) of this Section 9.5(b);


 


provided, however, in the case of each of (a) and
(c) of this clause
(6), that for the most recently ended four full fiscal quarters for which
internal financial statements are available immediately preceding the date of
issuance of such Designated Preferred Stock or the declaration of such
dividends on Refunding Capital Stock that is Preferred Stock, after giving
effect to such issuance or declaration on a pro forma  basis, the Borrower and its Restricted
Subsidiaries on a consolidated basis would have had a Fixed Charge Coverage
Ratio of at least 2.00 to 1.00;


 


(7)           Investments
in Unrestricted Subsidiaries having an aggregate fair market value, taken
together with all other Investments made pursuant to this clause (7) that are at the time
outstanding, without giving effect to the sale of an Unrestricted Subsidiary to
the extent the proceeds of such sale do not consist of cash or marketable
securities, not to exceed 1% of the Borrower’s Total Assets at the time of such
Investment (with the fair market value of each Investment being measured at the
time made and without giving effect to subsequent changes in value);


 


(8)           repurchases
of Equity Interests deemed to occur upon exercise of stock options or warrants
if such Equity Interests represent a portion of the exercise price of such options
or warrants;


 


(9)           the
declaration and payment of dividends on the Borrower’s common stock (or the
payment of dividends to any direct or indirect parent entity to fund a payment
of dividends on such entity’s common stock), following consummation of the
first public offering of the Borrower’s common stock or the common stock of any
of its direct or indirect parent companies after the Closing Date, of up to 6% per annum of the net cash proceeds received by or
contributed to the Borrower in or from any such public offering, other than
public offerings with respect to the Borrower’s common stock registered on Form S-4
or Form S-8 and other than any public sale constituting an Excluded
Contribution;


 


85

















 


(10)         Restricted
Payments that are made with Excluded Contributions;


 


(11)         other
Restricted Payments in an aggregate amount taken together with all other
Restricted Payments made pursuant to this clause (11) not to exceed 2%
of the Borrower’s Total Assets at the time made;


 


(12)         distributions
or payments of Receivables Fees;


 


(13)         any
Restricted Payment made in connection with the Transaction and the fees and
expenses related thereto or used to fund amounts owed to Affiliates (including
dividends to any direct or indirect parent of the Borrower to permit payment by
such parent of such amount), in each case to the extent permitted by Section 9.9
hereof;


 


(14)         the
repurchase, redemption or other acquisition or retirement for value of any
Subordinated Indebtedness in accordance with provisions similar to those
described under Sections 9.8 and 9.12 hereof; provided
that all Loans subject to prepayment under Section 9.8(c) or 9.12(a) hereof
which have been accepted for repayment by the applicable Lender, have been
repaid;


 


(15)         the
declaration and payment of dividends or distributions by the Borrower to, or
the making of loans to, any direct or indirect parent in amounts required for
any direct or indirect parent companies to pay, in each case without
duplication,


 


(a)           franchise
and excise taxes and other fees, taxes and expenses required to maintain their
corporate existence;


 


(b)           foreign,
federal, state and local income taxes, to the extent such income taxes are
attributable to the income of the Borrower and its Restricted Subsidiaries and,
to the extent of the amount actually received from its Unrestricted
Subsidiaries, in amounts required to pay such taxes to the extent attributable
to the income of such Unrestricted Subsidiaries; provided that in each
case the amount of such payments in any fiscal year does not exceed the amount
that the Borrower, its Restricted Subsidiaries and its Unrestricted
Subsidiaries (to the extent described above) would be required to pay in
respect of foreign, federal, state and local taxes for such fiscal year were
the Borrower, its Restricted Subsidiaries and its Unrestricted Subsidiaries (to
the extent described above) to pay such taxes separately from any such parent
entity;


 


(c)           customary
salary, bonus and other benefits payable to officers and employees of any
direct or indirect parent company of the Borrower to the extent such salaries,
bonuses and other benefits are attributable to the ownership or operation of
the Borrower and its Restricted Subsidiaries;


 


(d)           general
corporate operating and overhead costs and expenses of any direct or indirect
parent company of the Borrower to the extent such costs and expenses are
attributable to the ownership or operation of the Borrower and its Restricted
Subsidiaries; and


 


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(e)           fees
and expenses other than to Affiliates of the Borrower related to any
unsuccessful equity or debt offering of such parent entity;


 


(16)         the
distribution, by dividend or otherwise, of shares of Capital Stock of, or
Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted
Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which
are cash and/or Cash Equivalents);


 


provided, however,
that at the time of, and after giving effect to, any Restricted Payment permitted
under clauses (11) and (16) of this Section 9.5(b) no
Default shall have occurred and be continuing or would occur as a consequence
thereof.


 


(c)           The Borrower shall not permit any Unrestricted Subsidiary
to become a Restricted Subsidiary except pursuant to the last sentence of the
definition of “Unrestricted Subsidiary.” 
For purposes of designating any Restricted Subsidiary as an Unrestricted
Subsidiary, all outstanding Investments by the Borrower and its Restricted
Subsidiaries (except to the extent repaid) in the Subsidiary so designated shall
be deemed to be Restricted Payments in an amount determined as set forth in the
last sentence of the definition of “Investments.” Such designation shall be
permitted only if a Restricted Payment in such amount would be permitted at
such time, whether pursuant to Section 9.5(a) hereof or under clause
(7), (10) or (11) of Section 9.5(b), or
pursuant to the definition of “Permitted Investments,” and if such Subsidiary
otherwise meets the definition of an Unrestricted Subsidiary.


 


(d)           Notwithstanding
clauses (a), (b) and (c) of this Section 9.5,
the Borrower will not, and will not permit any of its Restricted Subsidiaries
to, pay any cash dividend or make any cash distribution on or in respect of the
Borrower’s Capital Stock or purchase for cash or otherwise acquire for cash any
Capital Stock of the Borrower or any direct or indirect parent of the Borrower,
for the purpose of paying any cash dividend or making any cash distribution to,
or acquiring Capital Stock of any direct or indirect parent of the Borrower for
cash from, the Investors, or Guarantee any Indebtedness of any Affiliate of the
Borrower for the purpose of paying such dividend, making such distribution or
so acquiring such Capital Stock to or from the Investors, in each case by means
of utilization of the cumulative Restricted Payment credit provided by the
first paragraph of this covenant, or the exceptions provided by clauses (1),
(7) or (11) of the second paragraph of this covenant or clauses
(8), (10) or (13) of the definition of “Permitted Investments”,
unless (x) at the time and after giving effect to such payment, the
Consolidated Leverage Ratio of the Borrower (including for this purpose
Indebtedness of the direct and/or indirect parent company of the Borrower)
would be equal to or less than 7.50 to 1.00 and (y) such payment is
otherwise in compliance with this covenant.


 


9.6.          Dividend and Other Payment Restrictions Affecting
Restricted Subsidiaries.


 


(a)           The Borrower will not, and will not permit any of its
Restricted Subsidiaries that are not Guarantors to, directly or indirectly,
create or otherwise cause or suffer to exist or become effective any consensual
encumbrance or consensual restriction on the ability of any such Restricted
Subsidiary to:


 


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(1)           (A)  pay
dividends or make any other distributions to the Borrower or any of its
Restricted Subsidiaries on its Capital Stock or with respect to any other
interest or participation in, or measured by, its profits, or


 


(B)           pay
any Indebtedness owed to the Borrower or any of its Restricted Subsidiaries;


 


(2)           make loans or
advances to the Borrower or any of its Restricted Subsidiaries; or


 


(3)           sell, lease or
transfer any of its properties or assets to the Borrower or any of its
Restricted Subsidiaries.


 


(b)           The restrictions in Section 9.6(a) hereof
shall not apply to encumbrances or restrictions existing under or by reason of:


 


(1)           contractual
encumbrances or restrictions in effect on the Closing Date;


 


(2)           this Agreement, the
Loans, the Guarantees, the Senior Refinancing Indenture and the Senior Notes;


 


(3)           the Holdco Indenture
and the Holdco Notes;


 


(4)           the Senior Take-out
Notes Indenture and the Senior Take-out Notes;


 


(5)           the Senior
Subordinated Refinancing Indenture and the Senior Subordinated Notes;


 


(6)           purchase money
obligations for property acquired in the ordinary course of business and
Capital Lease Obligations that impose restrictions of the nature discussed in clause
(3) of Section 9.6(a) hereof on the property so
acquired;


 


(7)           applicable law or
any applicable rule, regulation or order;


 


(8)           any agreement or
other instrument of a Person acquired by the Borrower or any Restricted Subsidiary
in existence at the time of such acquisition or at the time it merges with or
into the Borrower or any of its Restricted Subsidiaries or assumed in connection
with the acquisition of assets from any Person (but, in any such case, not
created in contemplation thereof), which encumbrance or restriction is not
applicable to any Person, or the properties or assets of any Person, other than
the Person and its Subsidiaries, or the property or assets of the Person and
its Subsidiaries, so acquired or the property or assets assumed;


 


(9)           contracts for the
sale of assets, including customary restrictions with respect to a Subsidiary
of the Borrower pursuant to an agreement that has been entered into for the
sale or disposition of all or substantially all of the Capital Stock or assets
of such Subsidiary;


 


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(10)         Secured Indebtedness
otherwise permitted to be incurred pursuant to Section 9.7 hereof
and Section 9.10 hereof that limits the right of the debtor to
dispose of the assets securing such Indebtedness;


 


(11)         restrictions on cash
or other deposits or net worth imposed by customers under contracts entered
into in the ordinary course of business;


 


(12)         other Indebtedness,
Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be
incurred subsequent to the Closing Date pursuant to Section 9.7
hereof;


 


(13)         customary provisions
in joint venture agreements and other agreements or arrangements relating
solely to such joint venture;


 


(14)         customary provisions
contained in leases or licenses of intellectual property and other agreements,
in each case, entered into in the ordinary course of business;


 


(15)         restrictions or
conditions contained in any trading, netting, operating, construction, service,
supply, purchase or other agreement to which the Borrower or any of its
Restricted Subsidiaries is a party entered into in the ordinary course of
business, in each case so long as such agreement prohibits the encumbrance of
solely the property or assets of the Borrower or such Restricted Subsidiary
that are the subject of such agreement, the payment rights arising thereunder
or the proceeds thereof and does not extend to any other asset or property of
the Borrower or such Restricted Subsidiary or the assets or property of any
other Restricted Subsidiary;


 


(16)         restrictions created
in connection with any Receivables Facility that, in the good faith
determination of the Borrower are necessary or advisable to effect the transactions
contemplated under such Receivables Facility; and


 


(17)         any encumbrances or
restrictions of the type referred to in clauses (1), (2) (3),
(4) and (5) of Section 9.6(a) hereof
imposed by any amendments, modifications, restatements, renewals, increases,
supplements, refundings, replacements or refinancings of the contracts,
instruments or obligations referred to in clauses (1) through (16)
of this Section 9.6(b); provided that such amendments,
modifications, restatements, renewals, increases, supplements, refundings,
replacements or refinancings are, in the good faith judgment of the Borrower,
not materially more restrictive with respect to such encumbrance and other
restrictions taken as a whole than those prior to such amendment, modification,
restatement, renewal, increase, supplement, refunding, replacement or refinancing.


 


9.7.          Limitation on Incurrence of Indebtedness and Issuance of
Disqualified Stock and Preferred Stock.


 


(a)           The Borrower shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, create, incur, issue,
assume, guarantee or otherwise become directly or indirectly liable, contingently
or otherwise (collectively, “incur” and
collectively, an 


 


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“incurrence”),
with respect to any Indebtedness (including Acquired Indebtedness), and the
Borrower shall not issue any shares of Disqualified Stock and shall not permit
any Restricted Subsidiary to issue any shares of Disqualified Stock or
Preferred Stock; provided, however, that the Borrower may incur
Indebtedness (including Acquired Indebtedness) or issue shares of Disqualified
Stock, and any of its Restricted Subsidiaries may incur Indebtedness (including
Acquired Indebtedness), issue shares of Disqualified Stock and issue shares of
Preferred Stock, if the Fixed Charge Coverage Ratio on a consolidated basis for
the Borrower and its Restricted Subsidiaries’ most recently ended four fiscal
quarters for which internal financial statements are available immediately
preceding the date on which such additional Indebtedness is incurred or such
Disqualified Stock or Preferred Stock is issued would have been at least 2.00
to 1.00, determined on a pro forma  basis (including a pro forma  application of the net proceeds therefrom),
as if the additional Indebtedness had been incurred, or the Disqualified Stock
or Preferred Stock had been issued, as the case may be, and the application of
proceeds therefrom had occurred at the beginning of such four-quarter period; provided,
further, that Restricted Subsidiaries that are not Guarantors may not
incur Indebtedness or issue shares of Disqualified Stock or Preferred Stock if,
after giving pro forma  effect to such incurrence or issuance
(including a pro forma  application of the net proceeds therefrom),
more than an aggregate of $2,000.0 million of Indebtedness or Disqualified
Stock or Preferred Stock of Restricted Subsidiaries that are not Guarantors
would be outstanding pursuant to this Section 9.7(a) and clauses
(12)(b) and (14) of Section 9.7(b) at such
time.


 


(b)           The provisions of Section 9.7(a) hereof
shall not apply to:


 


(1)           the incurrence of
Indebtedness under Credit Facilities by the Borrower or any of its Restricted
Subsidiaries and the issuance and creation of letters of credit and bankers’
acceptances thereunder (with letters of credit and bankers’ acceptances being
deemed to have a principal amount equal to the face amount thereof), up to an
aggregate principal amount of $16,500.0 million outstanding at any one time;


 


(2)           the incurrence by
the Borrower and any Guarantor of Indebtedness arising under (a) this
Agreement (including any Guarantee), (b) the Senior Subordinated Interim
Loan Agreement (including any guarantees thereof), (c) the Senior
Refinancing Indenture (including any guarantee thereof), (d) the Senior
Subordinated Refinancing Indenture (including any guarantee thereof) and (e) the
Senior Take-out Notes Indenture (including any guarantee thereof);


 


(3)           Indebtedness of the
Borrower and its Restricted Subsidiaries in existence on the Original Closing
Date (other than Indebtedness described in clauses (1) and (2) of
this Section 9.7(b));


 


(4)           Indebtedness
(including Capitalized Lease Obligations), Disqualified Stock and Preferred
Stock incurred by the Borrower or any of its Restricted Subsidiaries, to
finance the purchase, lease, improvement, development or construction of
property (real or personal), equipment or other fixed or capital assets that
are used or useful in a Similar Business, whether through the direct purchase
of assets or the Capital Stock of any Person owning such assets; provided
that the aggregate amount of Indebtedness, Disqualified 


 


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Stock
and Preferred Stock incurred pursuant to this clause (4), when
aggregated with all other outstanding amounts of Indebtedness incurred under clause
(13) to refinance Indebtedness initially incurred in reliance on this clause
(4), does not exceed 4.0% of the Borrower’s Total Assets at any one time
outstanding so long as such Indebtedness exists at the date of such purchase,
lease or improvement or is created within 270 days thereafter;


 


(5)           Indebtedness
incurred by the Borrower or any of its Restricted Subsidiaries constituting
reimbursement obligations with respect to letters of credit issued in the
ordinary course of business, including letters of credit in respect of workers’
compensation or employee health claims, or other Indebtedness with respect to
reimbursement-type obligations regarding workers’ compensation or employee
health claims; provided that upon the drawing of such letters of credit
or the incurrence of such Indebtedness, such obligations are reimbursed within
30 days following such drawing or incurrence;


 


(6)           Indebtedness arising
from agreements of the Borrower or its Restricted Subsidiaries providing for
indemnification, adjustment of purchase price or similar obligations, in each
case, incurred or assumed in connection with the disposition of any business,
assets or a Subsidiary, other than guarantees of Indebtedness incurred by any
Person acquiring all or any portion of such business, assets or a Subsidiary
for the purpose of financing such acquisition; provided that such
Indebtedness is not reflected on the balance sheet of the Borrower or any of
its Restricted Subsidiaries (contingent obligations referred to in a footnote
to financial statements and not otherwise reflected on the balance sheet will
not be deemed to be reflected on such balance sheet for purposes of this clause (6));


 


(7)           Indebtedness of the
Borrower to a Restricted Subsidiary; provided that any such Indebtedness
owing to a Restricted Subsidiary that is not a Guarantor is expressly
subordinated in right of payment to the Loans; provided, further,
that any subsequent issuance or transfer of any Capital Stock or any other
event which results in any Restricted Subsidiary ceasing to be a Restricted
Subsidiary or any other subsequent transfer of any such Indebtedness (except to
the Borrower or another Restricted Subsidiary) shall be deemed, in each case,
to be an incurrence of such Indebtedness;


 


(8)           Indebtedness of a
Restricted Subsidiary to the Borrower or another Restricted Subsidiary; provided
that if a Guarantor incurs such Indebtedness owing to a Restricted Subsidiary
that is not a Guarantor, such Indebtedness is expressly subordinated in right
of payment to the Guarantee of the Loans of such Guarantor; provided, further,
that any subsequent transfer of any such Indebtedness (except to the Borrower
or another Restricted Subsidiary) shall be deemed, in each case, to be an
incurrence of such Indebtedness not permitted by this clause (8);


 


(9)           shares of Preferred
Stock of a Restricted Subsidiary issued to the Borrower or another Restricted
Subsidiary; provided that any subsequent issuance or transfer of any
Capital Stock or any other event which results in any such Restricted
Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent
transfer of any such shares 


 


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of
Preferred Stock (except to the Borrower or another Restricted Subsidiary) shall
be deemed in each case to be an issuance of such shares of Preferred Stock not
permitted by this clause (9);


 


(10)         Hedging Obligations
(excluding Hedging Obligations entered into for speculative purposes) for the
purpose of limiting interest rate risk with respect to any Indebtedness
permitted to be incurred pursuant to this Section 9.7, exchange rate risk or
commodity pricing risk;


 


(11)         obligations in
respect of performance, bid, appeal and surety bonds and completion guarantees
provided by the Borrower or any of its Restricted Subsidiaries in the ordinary
course of business;


 


(12)         (a) 
Indebtedness or Disqualified Stock of the Borrower and Indebtedness, Disqualified
Stock or Preferred Stock of the Borrower or any Restricted Subsidiary equal to
200.0% of the net cash proceeds received by the Borrower since immediately after
the Original Closing Date from the issue or sale of Equity Interests of the
Borrower or cash contributed to the capital of the Borrower (in each case,
other than Excluded Contributions or proceeds of Disqualified Stock or sales of
Equity Interests to the Borrower or any of its Subsidiaries) as determined in
accordance with clauses (3)(b) and (3)(c) of Section 9.5(a) hereof
to the extent such net cash proceeds or cash have not been applied pursuant to
such clauses to make Restricted Payments or to make other Investments, payments
or exchanges pursuant to Section 9.5(b) hereof or to make
Permitted Investments (other than Permitted Investments specified in clauses (1) and (3) of the definition
thereof); and


 


(b)           Indebtedness
or Disqualified Stock of the Borrower and Indebtedness, Disqualified Stock or
Preferred Stock of the Borrower or any Restricted Subsidiary not otherwise
permitted hereunder in an aggregate principal amount or liquidation preference,
which when aggregated with the principal amount and liquidation preference of
all other Indebtedness, Disqualified Stock and Preferred Stock then outstanding
and incurred pursuant to this clause (12)(b), does not at any one time
outstanding exceed $1,000.0 million; provided, however, that on a
pro forma  basis, together with any amounts incurred and
outstanding by Restricted Subsidiaries that are not Guarantors pursuant to the
second proviso to Section 9.7(a) and clause (14) of
this Section 9.7(a), no more than $2,000.0 million of Indebtedness,
Disqualified Stock or Preferred Stock at any one time outstanding and incurred
pursuant to this clause (12)(b) shall be incurred by Restricted Subsidiaries
that are not Guarantors (it being understood that any Indebtedness, Disqualified
Stock or Preferred Stock incurred pursuant to this clause (12)(b) shall
cease to be deemed incurred or outstanding for purposes of this clause (12)(b) but
shall be deemed incurred for the purposes of Section 9.7(a) hereof
from and after the first date on which the Borrower or such Restricted
Subsidiary could have incurred such Indebtedness, Disqualified Stock or
Preferred Stock under Section 9.7(a) hereof without reliance
on this clause (12)(b));


 


(13)         the incurrence or
issuance by the Borrower or any Restricted Subsidiary of Indebtedness,
Disqualified Stock or Preferred Stock which serves to refund, refinance, 


 


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replace,
renew, extend or defease any Indebtedness, Disqualified Stock or Preferred
Stock of the Borrower or any Restricted Subsidiary incurred as permitted under Section 9.7(a) hereof
and clauses (2), (3), (4) and (12)(a) of
this Section 9.7(b) above, this clause (13) and clause
(14) of this Section 9.7(b) or any Indebtedness,
Disqualified Stock or Preferred Stock of the Borrower or any Restricted
Subsidiary issued to so refund or refinance such Indebtedness, Disqualified
Stock or Preferred Stock of the Borrower or any Restricted Subsidiary including
additional Indebtedness, Disqualified Stock or Preferred Stock incurred to pay
premiums (including reasonable tender premiums), defeasance costs and fees in
connection therewith (the “Refinancing Indebtedness”)
prior to its respective maturity; provided, however, that such
Refinancing Indebtedness:


 


(a)           has a Weighted
Average Life to Maturity at the time such Refinancing Indebtedness is incurred
which is not less than the remaining Weighted Average Life to Maturity of the
Indebtedness, Disqualified Stock or Preferred Stock being refunded, refinanced,
replaced, renewed or defeased,


 


(b)           to the extent such
Refinancing Indebtedness refinances (i) Indebtedness subordinated or pari
passu to the Loans or any Guarantee thereof, such Refinancing Indebtedness is
subordinated or pari passu to the Loans or the Guarantee at least to the same
extent as the Indebtedness being refinanced or refunded or (ii) Disqualified
Stock or Preferred Stock, such Refinancing Indebtedness must be Disqualified
Stock or Preferred Stock, respectively, and


 


(c)           shall not include
Indebtedness, Disqualified Stock or Preferred Stock of a Subsidiary of the
Borrower that is not a Guarantor that refinances Indebtedness, Disqualified
Stock or Preferred Stock of the Borrower or a Guarantor;


 


and provided, further,
that subclause (a) of this clause (13) will not apply to any
refunding or refinancing of any Obligations secured by Permitted Liens or Liens
permitted to be incorporated pursuant to Section 9.10 hereof;


 


(14)         Indebtedness,
Disqualified Stock or Preferred Stock of (x) the Borrower or a Restricted
Subsidiary incurred to finance an acquisition or (y) Persons that are
acquired by the Borrower or any Restricted Subsidiary or merged into the
Borrower or a Restricted Subsidiary in accordance with the terms of this
Agreement; provided that after giving effect to such acquisition or
merger, either


 


(a)           the Borrower would
be permitted to incur at least $1.00 of additional Indebtedness pursuant to the
Fixed Charge Coverage Ratio test set forth in Section 9.7(a) hereof,
or


 


(b)           the Fixed Charge
Coverage Ratio of the Borrower and its Restricted Subsidiaries is greater than
immediately prior to such acquisition or merger;


 


provided, however,
that on a pro forma basis, together with amounts
incurred and outstanding pursuant to the second proviso to Section 9.7(a) and
clause (12)(b) of this Section 9.7(b),


 


93

















 


no more than $2,000.0
million of Indebtedness, Disqualified Stock or Preferred Stock at any one time
outstanding and incurred by Restricted Subsidiaries that are not Guarantors
pursuant to this clause (14) shall be incurred and outstanding;


 


(15)         Indebtedness arising
from the honoring by a bank or other financial institution of a check, draft or
similar instrument drawn against insufficient funds in the ordinary course of
business; provided that such
Indebtedness is extinguished within five Business Days of its incurrence;


 


(16)         Indebtedness of the
Borrower or any of its Restricted Subsidiaries supported by a letter of credit
issued pursuant to any Credit Facilities, in a principal amount not in excess
of the stated amount of such letter of credit;


 


(17)         (a) any
guarantee by the Borrower or a Restricted Subsidiary of Indebtedness or other
obligations of any Restricted Subsidiary, so long as the incurrence of such
Indebtedness incurred by such Restricted Subsidiary is permitted under the
terms of this Agreement, or (b) any guarantee by a Restricted Subsidiary
of Indebtedness of the Borrower; provided that such guarantee is
incurred in accordance with Section 9.13 hereof;


 


(18)         Indebtedness of
Foreign Subsidiaries of the Borrower in an amount not to exceed at any one time
outstanding and together with any other Indebtedness incurred under this clause
(18) 5.0% of the Total Assets of the Foreign Subsidiaries (it being understood
that any Indebtedness incurred pursuant to this clause (18) shall cease
to be deemed incurred or outstanding for purposes of this clause (18)
but shall be deemed incurred for the purposes of Section 9.7(a) hereof
from and after the first date on which the Borrower or such Restricted
Subsidiaries could have incurred such Indebtedness under Section 9.7(a) hereof
without reliance on this clause (18));


 


(19)         Indebtedness of the
Borrower or any of its Restricted Subsidiaries consisting of (i) the
financing of insurance premiums or (ii) take-or-pay obligations contained
in supply arrangements, in each case, incurred in the ordinary course of
business;


 


(20)         Indebtedness
consisting of Indebtedness issued by the Borrower or any of its Restricted
Subsidiaries to current or former officers, directors and employees thereof,
their respective estates, spouses or former spouses, in each case to finance
the purchase or redemption of Equity Interests of the Borrower or any direct or
indirect parent company of the Borrower to the extent described in clause (4) of
Section 9.5(b) hereof;


 


(21)         customer deposits and
advance payments received in the ordinary course of business from customers for
goods and services purchased in the ordinary course of business;


 


(22)         Indebtedness owed on
a short-term basis of no longer than 30 days to banks and other financial
institutions incurred in the ordinary course of business of the Borrower and
its Restricted Subsidiaries with such banks or financial institutions that
arises in connection with ordinary banking arrangements to manage cash balances
of the Borrower and its Restricted Subsidiaries; and


 


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(23)         Indebtedness of the
Borrower or any of its Restricted Subsidiaries undertaken in connection with
cash management and related activities with respect to any Subsidiary or joint
venture in the ordinary course of business.


 


(c)           For purposes of determining
compliance with this Section 9.7:


 


(x)            in
the event that an item of Indebtedness, Disqualified Stock or Preferred Stock
(or any portion thereof) meets the criteria of more than one of the categories
of permitted Indebtedness, Disqualified Stock or Preferred Stock described in clauses
(1) through (23) of this Section 9.7(b) or is
entitled to be incurred pursuant to Section 9.7(a) hereof, the
Borrower, in its sole discretion, shall classify or reclassify such item of Indebtedness,
Disqualified Stock or Preferred Stock (or any portion thereof) and shall only
be required to include the amount and type of such Indebtedness, Disqualified
Stock or Preferred Stock in clauses (1) through (23) of this
Section 9.7(b) or under Section 9.7(a) hereof;
provided that all Indebtedness outstanding under the Credit Facilities
on the Closing Date shall be treated as incurred on the Closing Date under clause
(1) of Section 9.7(b) hereof; and


 


(y)           at
the time of incurrence, the Borrower will be entitled to divide and classify an
item of Indebtedness in more than one of the types of Indebtedness described in
Sections 9.7(a) and 9.7(b) hereof.


 


(d)           Accrual of interest or dividends, the accretion of
accreted value, the accretion or amortization of original issue discounts and
the payment of interest or dividends in the form of additional Indebtedness,
Disqualified Stock or Preferred Stock shall not be deemed to be an incurrence
of Indebtedness, Disqualified Stock or Preferred Stock for purposes of this Section 9.7.


 


(e)           For purposes of determining compliance with any U.S.
dollar-denominated restriction on the incurrence of Indebtedness, the U.S.
dollar-equivalent principal amount of Indebtedness denominated in a foreign
currency shall be calculated based on the relevant currency exchange rate in
effect on the date such Indebtedness was incurred, in the case of term debt, or
first committed, in the case of revolving credit debt; provided that if
such Indebtedness is incurred to refinance other Indebtedness denominated in a
foreign currency, and such refinancing would cause the applicable U.S.
dollar-denominated restriction to be exceeded if calculated at the relevant
currency exchange rate in effect on the date of such refinancing, such U.S.
dollar-denominated restriction shall be deemed not to have been exceeded so
long as the principal amount of such refinancing Indebtedness does not exceed
the principal amount of such Indebtedness being refinanced.


 


The principal amount of any Indebtedness incurred to
refinance other Indebtedness, if incurred in a different currency from the
Indebtedness being refinanced, shall be calculated based on the currency
exchange rate applicable to the currencies in which such respective
Indebtedness is denominated that is in effect on the date of such refinancing.


 


95

















 


(f)            Notwithstanding anything to the contrary, the Borrower
shall not, and shall not permit any Guarantor to, directly or indirectly, incur
any Indebtedness (including Acquired Indebtedness) that is subordinated or
junior in right of payment to any Indebtedness of the Borrower or such
Guarantor, as the case may be, unless such Indebtedness is expressly subordinated
in right of payment to the Loans or such Guarantor’s Guarantee to the extent
and in the same manner as such Indebtedness is subordinated to other
Indebtedness of the Borrower or such Guarantor, as the case may be.


 


9.8.          Asset Sales.


 


(a)           The Borrower shall not, and shall not permit any of its
Restricted Subsidiaries to consummate, directly or indirectly, an Asset Sale,
unless:


 


(1)           the Borrower or such
Restricted Subsidiary, as the case may be, receives consideration at the time
of such Asset Sale at least equal to the fair market value (as determined in
good faith by the Borrower) of the assets sold or otherwise disposed of; and


 


(2)           except in the case
of a Permitted Asset Swap, at least 75% of the consideration therefor received
by the Borrower or such Restricted Subsidiary, as the case may be, is in the
form of cash or Cash Equivalents; provided that the amount of:


 


(A)          any
liabilities (as reflected in the Borrower’s or such Restricted Subsidiary’s
most recent balance sheet or in the footnotes thereto, or if incurred or
accrued subsequent to the date of such balance sheet, such liabilities that
would have been shown on the Borrower or such Restricted Subsidiary’s balance
sheet or in the footnotes thereto if such incurrence or accrual have taken
place on the date of such balance sheet, as determined by the Borrower) of the
Borrower or such Restricted Subsidiary, other than liabilities that are by
their terms subordinated to the Loans, that are assumed by the transferee of
any such assets and for which the Borrower and all of its Restricted
Subsidiaries have been validly released by all creditors in writing,


 


(B)           any
securities, notes or other obligations or assets received by the Borrower or
such Restricted Subsidiary from such transferee that are converted by the
Borrower or such Restricted Subsidiary into cash (to the extent of the cash received)
within 180 days following the closing of such Asset Sale, and


 


(C)           any
Designated Non-cash Consideration received by the Borrower or such Restricted
Subsidiary in such Asset Sale having an aggregate fair market value, taken
together with all other Designated Non-cash Consideration received pursuant to
this clause (C) that is at that time outstanding, not to exceed 5%
of the Borrower’s Total Assets at the time of the receipt of such Designated
Non-cash Consideration, with the fair market value of each item of Designated
Non-cash Consideration being measured at the time received and without giving
effect to subsequent changes in value,


 


shall be deemed to be cash
for purposes of this provision and for no other purpose.


 


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(b)                                 Within
450 days after the receipt of any Net Asset Sale Proceeds of any Asset Sale,
the Borrower or such Restricted Subsidiary, at its option, may apply the Net
Asset Sale Proceeds from such Asset Sale,


 


(1)                                  to permanently
reduce:


 


(A)                              Obligations under Senior
Indebtedness which is Secured Indebtedness permitted by this Agreement, and to
correspondingly reduce commitments with respect thereto;


 


(B)                                Obligations under (i) this
Agreement, or (ii) other Senior Indebtedness (and to correspondingly
reduce commitments with respect thereto) through open-market purchases or by
making an Asset Sale Offer in accordance with the procedures set forth below; provided
that to the extent the Borrower or such Restricted Subsidiary reduces or makes
an offer to prepay, as applicable, Obligations under Senior Indebtedness other
than the Loans, the Borrower shall equally and ratably reduce Obligations under
the Loans as provided under Section 5.1 by making an offer in accordance
with the procedures set forth below for an Asset Sale Offer to all Lenders to
equally and ratably reduce or make an offer to prepay, as applicable, the Loans
at 100% of the principal amount thereof, plus the amount of accrued but unpaid
interest, if any, on the amount of the Loans that would otherwise be prepaid;
or


 


(C)                                Indebtedness of a
Restricted Subsidiary that is not a Guarantor, other than Indebtedness owed to
the Borrower or another Restricted Subsidiary (or any Affiliate thereof);


 


(2)                                  to make (a) an
Investment in any one or more businesses, provided that if such business
is not a Restricted Subsidiary, such Investment is in the form of the acquisition
of Capital Stock and results in the Borrower or another of its Restricted
Subsidiaries, as the case may be, owning an amount of the Capital Stock of such
business such that it constitutes a Restricted Subsidiary, (b) an
Investment in properties (c) capital expenditures or (d) acquisitions
of other assets, in each of clauses (a) through (d), that
are used or useful in a Similar Business or that replace the businesses,
properties and/or assets that are the subject of such Asset Sale;


 


provided
that, in the case of clause (2) above, a binding commitment shall
be treated as a permitted application of the Net Asset Sale Proceeds from the
date of such commitment so long as the Borrower or such other Restricted
Subsidiary enters into such commitment with the good faith expectation that
such Net Asset Sale Proceeds will be applied to satisfy such commitment within
180 days of such commitment (an “Acceptable Commitment”)
and, in the event any Acceptable Commitment is later cancelled or terminated
for any reason before the Net Asset Sale Proceeds are applied in connection
therewith, the Borrower or such Restricted Subsidiary enters into another
Acceptable Commitment (a “Second Commitment”)
within 180 days of such cancellation or termination; provided, further,
that if any Second Commitment is later cancelled or terminated 


 


97

















 


for any reason
before such Net Asset Sale Proceeds are applied, then such Net Asset Sale Proceeds
shall constitute Excess Proceeds.


 


(c)                                  Any
Net Asset Sale Proceeds that are not invested or applied as provided and within
the time period set forth in Section 9.8(b) shall be deemed to
constitute “Excess Proceeds.”  When the aggregate amount of Excess Proceeds
exceeds $200.0 million, the Borrower shall make an offer to all Lenders,
holders of the Senior Notes or holders of the Senior Take-out Notes, as
applicable, and, if required or permitted by the terms of any other Senior
Indebtedness, to the holders of such Senior Indebtedness (an “Asset Sale Offer”), to purchase the maximum aggregate
principal amount of the Loans, Senior Notes or Senior Take-out Notes, as
applicable, and such Senior Indebtedness that is a minimum of $2,000 or an
integral multiple of $1,000 in excess thereof that may be purchased out of the
Excess Proceeds at an offer price in cash in an amount equal to 100% of the
principal amount thereof, plus accrued and unpaid interest, to the date fixed
for the closing of such offer, in accordance with the procedures set forth in
this Agreement, the Senior Refinancing Indenture and the Senior Take-out Notes
Indenture.  The Borrower will commence an
Asset Sale Offer with respect to Excess Proceeds within ten Business Days after
the date that Excess Proceeds exceed $200.0 million by mailing the notice required
pursuant to the terms of this Agreement or the Senior Refinancing Indenture, as
applicable, with a copy to the Administrative Agent.


 


To the extent that the aggregate amount of
Loans, Senior Notes or Senior Take-out Notes, as applicable, and any other
Senior Indebtedness tendered pursuant to an Asset Sale Offer is less than the
Excess Proceeds, the Borrower may use any remaining Excess Proceeds for general
corporate purposes, subject to other covenants contained in this Agreement, the
Senior Refinancing Indenture or the Senior Take-out Notes Indenture, as
applicable.  If the aggregate principal amount
of Loans, Senior Notes or Senior Take-out Notes, as applicable, or the Senior
Indebtedness surrendered by such holders thereof exceeds the amount of Excess
Proceeds, the trustee for the Senior Take-out Notes shall select the Senior
Take-out Notes and the Administrative Agent shall select the Loans or Senior
Notes, as applicable, and such other Senior Indebtedness to be purchased on a pro rata basis (so long as an authorized denomination
results therefrom) based on the accreted value or principal amount of the
Loans, Senior Notes or Senior Take-out Notes, as applicable, or such Senior
Indebtedness which have been accepted for repayment by the applicable
Lender.  Upon completion of any such
Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.  Additionally, the Borrower may, at its
option, make an Asset Sale Offer using proceeds from any Asset Sale at any time
after consummation of such Asset Sale; provided that such Asset Sale
Offer shall be in an aggregate amount of not less than $25.0 million.  Upon consummation of such Asset Sale Offer,
any Net Asset Sale Proceeds not required to be used to purchase Loans, Senior
Notes or Senior Take-out Notes, as applicable, shall not be deemed Excess Proceeds.


 


(d)                                 Pending
the final application of any Net Asset Sale Proceeds pursuant to this Section 9.8,
the holder of such Net Asset Sale Proceeds may apply such Net Asset Sale Proceeds
temporarily to reduce Indebtedness outstanding under a revolving credit
facility or otherwise invest such Net Asset Sale Proceeds in any manner not
prohibited by this Agreement.


 


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9.9.                              Transactions
with Affiliates.


 


(a)                                  The
Borrower shall not, and shall not permit any of its Restricted Subsidiaries to,
make any payment to, or sell, lease, transfer or otherwise dispose of any of
its properties or assets to, or purchase any property or assets from, or enter
into or make or amend any transaction, contract, agreement, understanding,
loan, advance or guarantee with, or for the benefit of, any Affiliate of the
Borrower (each of the foregoing, an “Affiliate Transaction”)
involving aggregate payments or consideration in excess of $40.0 million,
unless:


 


(1)                                  such Affiliate
Transaction is on terms that are not materially less favorable to the Borrower
or its relevant Restricted Subsidiary than those that would have been obtained
in a comparable transaction by the Borrower or such Restricted Subsidiary with
an unrelated Person on an arm’s-length basis; and


 


(2)                                  the Borrower delivers
to the Administrative Agent with respect to any Affiliate Transaction or series
of related Affiliate Transactions involving aggregate payments or consideration
in excess of $80.0 million, a resolution adopted by the majority of the board
of directors of the Borrower approving such Affiliate Transaction and set forth
in an Officer’s Certificate certifying that such Affiliate Transaction complies
with clause (1) of this Section 9.9(a).


 


(b)                                 The
provisions of Section 9.9(a) hereof shall not apply to the
following:


 


(1)                                  transactions between
or among the Borrower or any of its Restricted Subsidiaries;


 


(2)                                  Restricted Payments
permitted by Section 9.5 hereof and the definition of “Permitted
Investments”;


 


(3)                                  the payment of
management, consulting, monitoring and advisory fees and related expenses to the
Investors pursuant to the Sponsor Management Agreement (plus any unpaid
management, consulting, monitoring and advisory fees and related expenses
accrued in any prior year) and the termination fees pursuant to the Sponsor
Management Agreement, in each case as in effect on the Closing Date, or any
amendments thereto (so long as any such amendment is not, in the good faith
judgment of the board of directors of the Borrower, disadvantageous to the
Lenders when taken as a whole compared to the Sponsor Management Agreement as
in effect on the Closing Date);


 


(4)                                  the payment of
reasonable and customary fees paid to, and indemnities provided for the benefit
of, former, current or future officers, directors, employees or consultants of
Borrower, any of its direct or indirect parent companies or any of its Restricted
Subsidiaries;


 


(5)                                  transactions in which
the Borrower or any of its Restricted Subsidiaries, as the case may be,
delivers to the Administrative Agent a letter from an Independent Financial
Advisor stating that such transaction is fair to the Borrower or such
Restricted Subsidiary from a financial point of view or stating that the terms
are not materially less 


 


99

















 


favorable to the Borrower or its relevant Restricted Subsidiary than
those that would have been obtained in a comparable transaction by the Borrower
or such Restricted Subsidiary with an unrelated Person on an arm’s-length
basis;


 


(6)                                  any agreement or
arrangement as in effect as of the Closing Date, or any amendment thereto (so
long as any such amendment is not disadvantageous to the Lenders when taken as
a whole as compared to the applicable agreement as in effect on the Closing
Date);


 


(7)                                  the existence of, or
the performance by the Borrower or any of its Restricted Subsidiaries of its
obligations under the terms of, any stockholders agreement or its equivalent
(including any registration rights agreement or purchase agreement related
thereto) to which it is a party as of the Closing Date and any similar
agreements which it may enter into thereafter; provided, however,
that the existence of, or the performance by the Borrower or any of its
Restricted Subsidiaries of obligations under any future amendment to any such
existing agreement or under any similar agreement entered into after the
Closing Date shall only be permitted by this clause (7) to the
extent that the terms of any such amendment or new agreement are not otherwise
disadvantageous to the Lenders when taken as a whole;


 


(8)                                  the Transaction, the
Senior Take-out Notes Offering and the payment of all fees and expenses related
to the Transaction and the Senior Take-out Notes Offering;


 


(9)                                  transactions with
customers, clients, suppliers, or purchasers or sellers of goods or services,
in each case in the ordinary course of business and otherwise in compliance
with the terms of this Agreement which are fair to the Borrower and its
Restricted Subsidiaries, in the reasonable determination of the board of
directors of the Borrower or the senior management thereof, or are on terms at
least as favorable as might reasonably have been obtained at such time from an
unaffiliated party;


 


(10)                            the issuance or transfer of
Equity Interests (other than Disqualified Stock) of the Borrower to any
Permitted Lender or to any former, current or future director, officer,
employee or consultant (or their respective estates, investment funds,
investment vehicles, spouses or former spouses) of the Borrower, any of its
direct or indirect parent companies or any of its Subsidiaries;


 


(11)                            sales of accounts
receivable, or participations therein, in connection with any Receivables Facility;


 


(12)                            payments by the Borrower or
any of its Restricted Subsidiaries to any of the Investors made for any
financial advisory, financing, underwriting or placement services or in respect
of other investment banking activities, including, without limitation, in
connection with acquisitions or divestitures, which payments are approved by a
majority of the board of directors of the Borrower in good faith;


 


(13)                            payments or loans (or
cancellation of loans) to employees or consultants of the Borrower, any of its
direct or indirect parent companies or any of its Restricted 


 


100

















 


Subsidiaries and employment agreements, stock option plans and other
similar arrangements with such employees or consultants which, in each case,
are approved by the Borrower in good faith;


 


(14)                            investments by the
Investors in securities of the Borrower or any of its Restricted Subsidiaries
(and the payment of reasonable out-of-pocket expenses incurred by the Investors
in connection therewith) so long as (i) the investment is being offered generally
to other investors on the same or more favorable terms and (ii) the
investment constitutes less than 5% of the proposed or outstanding issue amount
of such class of securities;


 


(15)                            payments to and from, and
transactions with, any joint venture in the ordinary course of business; and


 


(16)                            payments by the Borrower
(and any direct or indirect parent thereof) and its Subsidiaries pursuant to
tax sharing agreements among the Borrower (and any such parent) and its
Subsidiaries on customary terms to the extent attributable to the ownership or
operation of the Borrower and its Subsidiaries; provided that in each
case the amount of such payments in any fiscal year does not exceed the amount
that the Borrower, its Restricted Subsidiaries and its Unrestricted
Subsidiaries (to the extent of amounts received from Unrestricted Subsidiaries)
would be required to pay in respect of foreign, federal, state and local taxes
for such fiscal year were the Borrower, its Restricted Subsidiaries and its
Unrestricted Subsidiaries (to the extent described above) to pay such taxes separately
from any such parent entity.


 


9.10.                        Liens.  The Borrower shall not, and shall not permit
any Guarantor to, directly or indirectly, create, incur, assume or suffer to
exist any Lien (except Permitted Liens) that secures obligations under any
Indebtedness or any related Guarantee, on any asset or property of the Borrower
or any Guarantor, or any income or profits therefrom, or assign or convey any
right to receive income therefrom, unless:


 


(1)                                  in the case of Liens
securing Subordinated Indebtedness, the Loans and related Guarantees are
secured by a Lien on such property, assets or proceeds that is senior in
priority to such Liens; or


 


(2)                                  in all other cases,
the Loans or the Guarantees are equally and ratably secured or are secured by a
Lien on such property, assets or proceeds that is senior in priority to such
Liens;


 


except that
the foregoing shall not apply to (a) Liens securing Indebtedness permitted
to be incurred under the Credit Facilities, including any letter of credit
relating thereto, that are permitted by the terms of this Agreement to be
incurred pursuant to clause (1) of Section 9.7(b) and
(b) Liens which are incurred to secure Obligations in respect of any
Indebtedness permitted to be incurred pursuant to the covenant described above
under Section 9.7; provided that, with respect to Liens
securing Obligations permitted under this subclause (b), at the time of
incurrence and after giving pro forma
effect thereto, the Consolidated Secured Debt Ratio would be no greater 


 


101

















 


than 4.50 to
1.00.  Any Lien which is granted to
secure the Loans under this Section 9.10 shall be discharged at the
same time as the discharge of the Lien (other than through the exercise of
remedies with respect thereto) that gave rise to the obligation to so secure
the Loans.


 


9.11.                        Corporate
Existence.  Subject to Sections
9.14 and 9.15, the Borrower shall do or cause to be done all things
necessary to preserve and keep in full force and effect (i) its corporate
existence, and the corporate, partnership or other existence of each of its Restricted
Subsidiaries, in accordance with the respective organizational documents (as
the same may be amended from time to time) of the Borrower or any such
Restricted Subsidiary and (ii) the rights (charter and statutory),
licenses and franchises of the Borrower and its Restricted Subsidiaries; provided
that the Borrower shall not be required to preserve any such right, license or
franchise, or the corporate, partnership or other existence of any of its
Restricted Subsidiaries, if the Borrower in good faith shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Borrower and its Restricted Subsidiaries, taken as a whole.


 


9.12.                        Offer
to Repurchase upon Change of Control.


 


(a)                                  If
a Change of Control occurs, unless otherwise prepaid in accordance with Section 5.2(a) or
Section 9.8 hereof, the Borrower shall make an offer to prepay all
of the Loans pursuant to the offer described below (the “Change of
Control Offer”) at a price in cash (the “Change of
Control Prepayment”) equal to 100% of the aggregate principal amount
thereof plus accrued and unpaid interest, to the date of purchase, subject to
the right of Lenders of record on the relevant record date to receive interest
due on the relevant interest payment date. 
Within 30 days following any Change of Control, the Borrower shall send
notice of such Change of Control Offer by first-class mail, with a copy to the
Administrative Agent, to each Lender to the address of such Lender appearing in
the Register with a copy to the Administrative Agent, with the following
information:


 


(1)                                  that a Change of
Control Offer is being made pursuant to this Section 9.12 and that
such Lender has the right to require the Borrower to prepay such Lender’s
Loans;


 


(2)                                  the prepayment amount
and the prepayment date, which will be no earlier than 30 days nor later than
60 days from the date such notice is mailed (the “Change of
Control Prepayment Date”);


 


(3)                                  that any Loans not
properly accepted for prepayment pursuant to this Section 9.12 will
remain outstanding and continue to accrue interest;


 


(4)                                  that unless the
Borrower defaults in the prepayment of the Change of Control Prepayment, all
Loans accepted for prepayment pursuant to the Change of Control Offer will
cease to accrue interest on the Change of Control Prepayment Date;


 


(5)                                  that Lenders shall be
entitled to withdraw their election to require the Borrower to prepay such
Loans, provided that the Borrower receives, not later than the close of
business on the expiration date of the Change of Control Offer, a facsimile
transmission or letter setting forth the name of the Lender, the principal
amount of Loans accepted 


 


102

















 


for prepayment, and a statement that such Lender is withdrawing its
election to have such Loans prepaid; and


 


(6)                                  the other
instructions, as determined by the Borrower, consistent with this Section 9.12,
that a Lender must follow.


 


The notice, if mailed in a manner herein provided,
shall be conclusively presumed to have been given, whether or not the Lender
receives such notice.  If (a) the
notice is mailed in a manner herein provided and (b) any Lender fails to
receive such notice or a Lender receives such notice but it is defective, such
Lender’s failure to receive such notice or such defect shall not affect the
validity of the proceedings for the purchase of the Loans as to all other
Lenders that properly received such notice without defect.


 


(b)                                 On
the Change of Control Prepayment Date, the Borrower shall, to the extent permitted
by law,


 


(i)                                     prepay all Loans,
or portions thereof, accepted for prepayment in accordance with this Section 9.12,
pursuant to the Change of Control Offer;


 


(ii)                                  deposit with the
Administrative Agent an amount equal to the aggregate Change of Control
Prepayment in respect of all Loans or portions thereof so accreted for
prepayment; and


 


(iii)                               deliver, or cause to be
delivered, to the Administrative Agent, an Officer’s Certificate to the
Administrative Agent stating that such Loans or portions thereof have been
prepaid by the Borrower.


 


(c)                                  The
Borrower shall not be required to make a Change of Control Offer following a
Change of Control if a third-party makes the Change of Control Offer in the
manner, at the times and otherwise in compliance with the requirements set
forth in this Section 9.12 applicable to a Change of Control Offer
made by the Borrower and repays all Loans accepted for prepayment pursuant to
such Change of Control Offer. 
Notwithstanding anything to the contrary herein, a Change of Control
Offer may be made in advance of a Change of Control, conditional upon such
Change of Control, if a definitive agreement is in place for the Change of Control
at the time of making of the Change of Control Offer.


 


(d)                                 Other
than as specifically provided in this Section 9.12, any prepayment
pursuant to this Section 9.12 shall be made pursuant to the provisions of Sections
5.2, 5.5 and 5.6 hereof.


 


9.13.                        Limitation
on Guarantees of Indebtedness by Restricted Subsidiaries.  The Borrower shall not permit any of its
Wholly Owned Subsidiaries that are Restricted Subsidiaries (and non-Wholly
Owned Subsidiaries if such non-Wholly Owned Subsidiaries guarantee capital
markets debt securities of the Borrower or any Guarantor), other than a Guarantor,
a Foreign Subsidiary or a Receivables Subsidiary, to guarantee the payment of
any Indebtedness of the Borrower or any other Guarantor unless:


 


103

















 


(1)                                  such Restricted Subsidiary
within 30 days executes and delivers a Guarantee substantially in the form of Exhibit A
providing for a Guarantee by such Restricted Subsidiary, provided that:


 


(a)                                  if the Loans or such
Guarantor’s Guarantee is subordinated in right of payment to such Indebtedness,
the Guarantee shall be subordinated to such Restricted Subsidiary’s guarantee
with respect to such Indebtedness substantially to the same extent as the Loans
are subordinated to such Indebtedness; and


 


(b)                                 if such Indebtedness
is by its express terms subordinated in right of payment to the Loans or such
Guarantor’s Guarantee, any such guarantee by such Restricted Subsidiary with
respect to such Indebtedness shall be subordinated in right of payment to such
Guarantee substantially to the same extent as such Indebtedness is subordinated
to the Loans; and


 


(2)                                  such Restricted
Subsidiary waives, and shall not in any manner whatsoever claim or take the
benefit or advantage of, any rights of reimbursement, indemnity or subrogation
or any other rights against the Borrower or any other Restricted Subsidiary as
a result of any payment by such Restricted Subsidiary under its Guarantee;


 


provided
that this Section 9.13 shall not be applicable to (i) any
guarantee of any Restricted Subsidiary that existed at the time such Person
became a Restricted Subsidiary and was not incurred in connection with, or in
contemplation of, such Person becoming a Restricted Subsidiary, (ii) guarantees
of any Receivables Facility by any Receivables Subsidiary and (iii) any
guarantee relating to the Senior Take-out Notes Offering .


 


9.14.                        Merger,
Consolidation or Sale of All or Substantially All Assets.


 


(a)                                  The
Borrower shall not consolidate or merge with or into or wind up into (whether
or not the Borrower is the surviving corporation), or sell, assign, transfer,
lease, convey or otherwise dispose of all or substantially all of its
properties or assets, in one or more related transactions, to any Person
unless:


 


(1)                                  either:  (x) the Borrower is the surviving
entity; or (y) the Person formed by or surviving any such consolidation or
merger (if other than the Borrower) or to which such sale, assignment,
transfer, lease, conveyance or other disposition will have been made is an
entity organized or existing under the laws of the jurisdiction of organization
of the Borrower or the laws of the United States, any state thereof, the
District of Columbia or any territory thereof (such Person, as the case may be,
being herein called the “Successor Borrower”);
provided that if the surviving Person is not a corporation, a corporation
organized or existing under the laws of the jurisdiction of organization of the
Borrower or the laws of the United States, any state thereof, the District of
Columbia or any territory thereof shall be a co-Borrower of the Loans;


 


(2)                                  the Successor
Borrower, if other than the Borrower, expressly assumes all the obligations of
the Borrower under the Loans pursuant to a supplemental agreement or 


 


104

















 


other documents or instruments in form reasonably satisfactory to the
Administrative Agent;


 


(3)                                  immediately after
such transaction, no Default exists;


 


(4)                                  immediately after
giving pro forma  effect to such transaction and any related
financing transactions, as if such transactions had occurred at the beginning
of the applicable four quarter period,


 


(A)                              the Successor Borrower
would be permitted to incur at least $1.00 of additional Indebtedness pursuant
to the Fixed Charge Coverage Ratio test set forth in Section 9.7(a) hereof,
or


 


(B)                                the Fixed Charge
Coverage Ratio for the Successor Borrower, the Borrower and its Restricted
Subsidiaries would be greater than such ratio for the Borrower and its
Restricted Subsidiaries immediately prior to such transaction;


 


(5)                                  each Guarantor,
unless it is the other party to the transactions described above, in which case
Section 9.14(c)(1)(B) hereof shall apply, shall have by supplemental
agreement confirmed that its Guarantee shall apply to such Person’s obligations
under this Agreement and the Loans; and


 


(6)                                  the Borrower shall
have delivered to the Administrative Agent an Officer’s Certificate stating
that such consolidation, merger or transfer and such supplemental agreements,
if any, comply with this Agreement and, if a supplemental agreement is required
in connection with such transaction, such supplement shall comply with the applicable
provisions of this Agreement.


 


(b)                                 The
Successor Borrower shall succeed to, and be substituted for the Borrower under
this Agreement, the Guarantees, the Loans, the Senior Refinancing Indenture and
the Senior Notes as applicable. 
Notwithstanding clauses (3) and (4) of Section 9.14(a) hereof,


 


(1)                                  any Restricted
Subsidiary may consolidate with or merge into or transfer all or part of its
properties and assets to the Borrower, and


 


(2)                                  the Borrower may
merge with an Affiliate of the Borrower, as the case may be, solely for the
purpose of reincorporating the Borrower in a State of the United States or any
state thereof, the District of Columbia or any territory thereof so long as the
amount of Indebtedness of the Borrower and its Restricted Subsidiaries is not
increased thereby.


 


(c)                                  Subject
to certain limitations described in this Agreement governing release of a
Guarantee upon the sale, disposition or transfer of a Guarantor, no Guarantor
shall, and the Borrower shall not permit any Guarantor to, consolidate or merge
with or into or wind up into (whether or not the Borrower or Guarantor is the
surviving corporation), or sell, assign, transfer, lease, convey or otherwise
dispose of all or substantially all of its properties or assets, in one or more
related transactions, to any Person unless:


 


105

















 


(1)                                  (A)  such
Guarantor is the surviving corporation or the Person formed by or surviving any
such consolidation or merger (if other than such Guarantor) or to which such
sale, assignment, transfer, lease, conveyance or other disposition will have
been made is a corporation, partnership, limited partnership, limited liability
corporation or trust organized or existing under the laws of the jurisdiction
of organization of such Guarantor, as the case may be, or the laws of the
United States, any state thereof, the District of Columbia, or any territory
thereof (such Guarantor or such Person, as the case may be, being herein called
the “Successor Person”);


 


(B)                                the
Successor Person, if other than such Guarantor, expressly assumes all the
obligations of such Guarantor under this Agreement and such Guarantor’s related
Guarantee pursuant to supplemental agreements or other documents or instruments
in form reasonably satisfactory to the Administrative Agent;


 


(C)                                immediately
after such transaction, no Default exists; and


 


(D)                               the
Borrower shall have delivered to the Administrative Agent an Officer’s
Certificate stating that such consolidation, merger or transfer and such supplemental
agreements, if any, comply with this Agreement; or


 


(2)                                  the transaction is
made in compliance with Section 9.8 hereof.


 


(d)                                 Subject
to certain limitations described in this Agreement, the Successor Person shall
succeed to, and be substituted for, such Guarantor under this Agreement and
such Guarantor’s Guarantee. 
Notwithstanding the foregoing, any Guarantor may (i) merge into or
transfer all or part of its properties and assets to another Guarantor or the
Borrower, (ii) merge with an Affiliate of the Borrower solely for the
purpose of reincorporating the Guarantor in the United States, any state
thereof, the District of Columbia or any territory thereof or (iii) convert
into a corporation, partnership, limited partnership, limited liability
corporation or trust organized or existing under the laws of the jurisdiction
of organization of such Guarantor.


 


(e)                                  Notwithstanding
anything to the contrary, the mergers contemplated by the Acquisition Agreement
shall be permitted without compliance with this Section 9.14.


 


9.15.                        Successor
Corporation Substituted.  Upon any
consolidation or merger, or any sale, assignment, transfer, lease, conveyance
or other disposition of all or substantially all of the assets of the Borrower
in accordance with Section 9.14 hereof, the successor corporation
formed by such consolidation or into or with which the Borrower is merged or to
which such sale, assignment, transfer, lease, conveyance or other disposition
is made shall succeed to, and be substituted for (so that from and after the
date of such consolidation, merger, sale, lease, conveyance or other
disposition, the provisions of this Agreement referring to the Borrower shall
refer instead to the successor corporation and not to the Borrower), and may
exercise every right and power of the Borrower under this Agreement with the
same effect as if such successor Person had been named as the Borrower herein; provided
that the predecessor Borrower shall not be relieved from the obligation to pay
the principal of and interest, if any, on the Loans except in the


 


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case of a
sale, assignment, transfer, conveyance or other disposition of all of the
Borrower’s assets that meets the requirements of Section 9.14
hereof.


 


9.16.                        [Reserved]


 


9.17.                        [Reserved]


 


SECTION 10.                                             [Reserved]


 


SECTION 11.                                             Defaults
and Remedies


 


11.1.                        Events
of Default.  (I)  Any of the
following events referred to in any of Sections 11.1(a) through (i) shall
constitute an “Event of Default”:


 


(a)                                  default
in payment when due and payable, upon redemption, acceleration or otherwise, of
principal of, or premium, if any, on the Loans;


 


(b)                                 default
for 30 days or more in the payment when due of interest on or with respect to
the Loans;


 


(c)                                  failure
by the Borrower for 120 days after receipt of written notice given by the
Administrative Agent or (x) prior to the Interim Loan Conversion Date, the
Required Holders of a majority of the Required Debt or (y) on or after the
Interim Loan Conversion Date, Holders holding at least 30% in aggregate
principal amount of the Required Debt then outstanding, to comply with any of
its obligations, covenants or agreements contained in Section 9.1;


 


(d)                                 (1) failure
by the Borrower or any Guarantor for 60 days after receipt of written notice
given by the Administrative Agent or (x) prior to the Interim Loan Conversion
Date, the Required Holders of a majority of the Required Debt or (y) on or
after the Interim Loan Conversion Date, Holders holding at least 30% in
aggregate principal amount of the Required Debt then outstanding, to comply
with any of its obligations, covenants or agreements (other than a default
referred to in clauses (a), (b) and (c) above)
contained in this Agreement or the Loans or (2) failure by the Borrower or
any Guarantor in the due performance of its obligation to issue Senior Notes as
contemplated in Section 2.14 and such default shall continue
unremedied for a period of at least 30 days;


 


(e)                                  default
under any mortgage, indenture or instrument under which there is issued or by
which there is secured or evidenced any Indebtedness for money borrowed by the
Borrower or any of its Restricted Subsidiaries or the payment of which is guaranteed
by the Borrower or any of its Restricted Subsidiaries, other than Indebtedness
owed to the Borrower or a Restricted Subsidiary, whether such Indebtedness or
guarantee now exists or is created after the issuance of the Loans, if both:


 


(i)                                     such
default either results from the failure to pay any principal of such Indebtedness
at its stated final maturity (after giving effect to any applicable grace
periods) or relates to an obligation other than the obligation to pay principal



 


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of any such
Indebtedness at its stated final maturity and results in the holder or holders
of such Indebtedness causing such Indebtedness to become due prior to its
stated maturity; and


 


(ii)                                  the
principal amount of such Indebtedness, together with the principal amount of
any other such Indebtedness in default for failure to pay principal at stated
final maturity (after giving effect to any applicable grace periods), or the
maturity of which has been so accelerated, aggregates $100.0 million or more at
any one time outstanding;


 


(f)                                    failure
by the Borrower or any Significant Subsidiary (or group of Restricted
Subsidiaries that together would constitute a Significant Subsidiary) to pay
final non-appealable judgments aggregating in excess of $100.0 million, which
final judgments remain unpaid, undischarged and unstayed for a period of more
than 60 days after such judgment becomes final, and in the event such judgment
is covered by insurance, an enforcement proceeding has been commenced by any
creditor upon such judgment or decree which is not promptly stayed;


 


(g)                                 the
Borrower or any of its Restricted Subsidiaries that is a Significant Subsidiary
or any group of Restricted Subsidiaries that, taken together, would constitute
a Significant Subsidiary, pursuant to or within the meaning of any Bankruptcy
Law:


 


(i)                                     commences
proceedings to be adjudicated bankrupt or insolvent;


 


(ii)                                  consents
to the institution of bankruptcy or insolvency proceedings against it, or the
filing by it of a petition or answer or consent seeking reorganization or
relief under applicable Bankruptcy Law;


 


(iii)                               consents
to the appointment of a receiver, liquidator, assignee, trustee, sequestrator
or other similar official of it or for all or substantially all of its
property;


 


(iv)                              makes
a general assignment for the benefit of its creditors; or


 


(v)                                 generally
is not paying its debts as they become due;


 


(h)                                 a
court of competent jurisdiction enters an order or decree under any Bankruptcy
Law that:


 


(i)                                     is
for relief against the Borrower or any of its Restricted Subsidiaries that is a
Significant Subsidiary or any group of Restricted Subsidiaries that, taken
together, would constitute a Significant Subsidiary, in a proceeding in which
the Borrower or any such Restricted Subsidiaries, that is a Significant Subsidiary
or any group of Restricted Subsidiaries that, taken together, would constitute
a Significant Subsidiary, is to be adjudicated bankrupt or insolvent;


 


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(ii)                                  appoints
a receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Borrower or any of its Restricted Subsidiaries that is a
Significant Subsidiary or any group of Restricted Subsidiaries that, taken
together, would constitute a Significant Subsidiary, or for all or
substantially all of the property of the Borrower or any of its Restricted
Subsidiaries that is a Significant Subsidiary or any group of Restricted
Subsidiaries that, taken together, would constitute a Significant Subsidiary;
or


 


(iii)                               orders
the liquidation of the Borrower or any of its Restricted Subsidiaries that is a
Significant Subsidiary or any group of Restricted Subsidiaries that, taken
together, would constitute a Significant Subsidiary;


 


and the order
or decree remains unstayed and in effect for 60 consecutive days; or


 


(i)                                     the
Guarantee of any Significant Subsidiary (or group of Restricted Subsidiaries
that together would constitute a Significant Subsidiary) shall for any reason
cease to be in full force and effect or be declared null and void or any
responsible officer of any Guarantor that is a Significant Subsidiary (or group
of Subsidiaries that together would constitute a Significant Subsidiary), as
the case may be, denies that it has any further liability under its Guarantee
or gives notice to such effect, other than by reason of the termination of this
Agreement or the release of any such Guarantee in accordance with this Agreement.


 


                                                   (II)                             In
the event of any Event of Default specified in clause (d) of Section 11.1(I) hereof,
such Event of Default and all consequences thereof (excluding any resulting
payment default, other than as a result of acceleration of the Senior Interim
Loan) will be annulled, waived and rescinded, automatically and without any
action by the Administrative Agent or the Required Holders holding at least a
majority of the Required Debt, if within 20 days after such Event of Default
arose:


 


(a)                                  the
Indebtedness or guarantee that is the basis for such Event of Default has been
discharged; or


 


(b)                                 holders
thereof have rescinded or waived the acceleration, notice or action (as the
case may be) giving rise to such Event of Default; or


 


(c)                                  the
default that is the basis for such Event of Default has been cured.


 


11.2.                        [Reserved]


 


11.3.                        [Reserved]


 


11.4.                        [Reserved]


 


11.5.                        [Reserved]


 


11.6.                        [Reserved]


 


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11.7.                        [Reserved]


 


11.8.                        [Reserved]


 


11.9.                        [Reserved]


 


11.10.                  [Reserved]


 


11.11.                  [Reserved]


 


11.12.                  [Reserved]


 


11.13.                  [Reserved]


 


11.14.                  [Reserved]


 


11.15.                  [Reserved]


 


11.16.                  Remedies upon
Event of Default, Waivers of Past Defaults.


 


(a)                                  If
any Event of Default (other than an Event of Default specified in clause (g) or
(h) of Section 11.1(I) hereof) occurs and is continuing
under this Agreement, (x) prior to the Interim Loan Conversion Date, the
Administrative Agent may and, upon the written request of the Required Holders
of a majority of the Required Debt or (y) on or after the Interim Loan
Conversion Date, the Administrative Agent may, and upon written request of
Required Holders holding at least 30% in aggregate principal amount of the
Required Debt then outstanding shall declare the principal, premium, if any,
interest and any other monetary obligations on all the then outstanding Loans
to be due and payable immediately.  Upon
the effectiveness of such declaration, such principal and interest shall be due
and payable immediately.


 


Notwithstanding the foregoing, in the case of
an Event of Default arising under clause (g) or (h) of Section 11.1(I)
hereof, all outstanding Loans shall be due and payable immediately without
further action or notice.


 


(b)                                 The
Required Holders holding at least a majority of the Required Debt by notice to
the Administrative Agent may on behalf of all Lenders waive any existing
Default and its consequences hereunder, except a continuing Default in the
payment of the principal of, premium, if any, or interest on, any Loans (held
by a Non-Consenting Lender) and rescind any acceleration with respect to the
Loans and its consequences (provided such rescission would not conflict with
any judgment of a court of competent jurisdiction; and that the Required
Holders holding at least a majority of the Required Debt may rescind an
acceleration and its consequences, including any related payment default that
resulted from such acceleration.  Upon
any such waiver, such Default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured for every purpose of this
Agreement; but no such waiver shall extend to any subsequent or other Default
or impair any right consequent thereon.


 


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11.17.                  Application
of Proceeds.  Any amount received by
the Administrative Agent from any Loan Party following any acceleration of the
Obligations under this Agreement or any Event of Default with respect to the
Borrower under Section 11.1(I)(g) or (h) shall be
applied:


 


(i)                                     first, to the payment of all reasonable and documented costs
and expenses incurred by the Administrative Agent in connection with any
collection or sale or otherwise in connection with any Loan Document, including
all court costs and the reasonable fees and expenses of its agents and legal
counsel, the repayment of all advances made by the Administrative Agent
hereunder or under any other Loan Document on behalf of any Loan Party and any
other reasonable and documented costs or expenses incurred in connection with
the exercise of any right or remedy hereunder or under any other Loan Document;


 


(ii)                                  second,
to the Guaranteed Parties, an amount (x) equal to all Obligations owing to
them on the date of any distribution and such moneys shall be insufficient to
pay such amounts in full, then ratably (without priority of any one over any
other) to such Guaranteed Parties in proportion to the unpaid amounts thereof;
and


 


(iii)                               third,
any surplus then remaining shall be paid to the applicable Loan Parties or
their successors or assigns or to whomsoever may be lawfully entitled to
receive the same or as a court of competent jurisdiction may direct.


 


SECTION 12.                                             The
Agents


 


12.1.                        Appointment.


 


(a)                                  Each
Lender hereby irrevocably designates and appoints the Administrative Agent as
the agent of such Lender under this Agreement and the other Loan Documents and
irrevocably authorizes the Administrative Agent, in such capacity, to take such
action on its behalf under the provisions of this Agreement and the other Loan
Documents and to exercise such powers and perform such duties as are expressly
delegated to the Administrative Agent by the terms of this Agreement and the
other Loan Documents, together with such other powers as are reasonably
incidental thereto.  The provisions of
this Section 12 (other than Section 12.1(c) with
respect to the Joint Lead Arrangers and Section 12.9 with respect
to the Borrower) are solely for the benefit of the Agents and the Lenders, and
the Borrower shall not have rights as third party beneficiary of any such
provision.  Notwithstanding any provision
to the contrary elsewhere in this Agreement, the Administrative Agent shall not
have any duties or responsibilities, except those expressly set forth herein,
or any fiduciary relationship with any Lender, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or any other Loan Document or otherwise exist against the
Administrative Agent.


 


(b)                                 [Reserved].


 


(c)                                  Each
of the Syndication Agent and Joint Lead Arrangers and Bookrunners, each in its
capacity as such, shall not have any obligations, duties or responsibilities
under this Agreement but shall be entitled to all benefits of this Section 12.


 


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12.2.                        Delegation
of Duties.  The Administrative Agent
may each execute any of its duties under this Agreement and the other Loan
Documents by or through agents, sub-agents, employees or attorneys-in-fact and
shall be entitled to advice of counsel concerning all matters pertaining to
such duties.  The Administrative Agent
shall not be responsible for the negligence or misconduct of any agents,
subagents or attorneys-in-fact selected by it in the absence of gross
negligence or willful misconduct (as determined in the final judgment of a
court of competent jurisdiction).


 


12.3.                        Exculpatory
Provisions.  No Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates shall
be (a) liable for any action lawfully taken or omitted to be taken by any
of them under or in connection with this Agreement or any other Loan Document
(except for its or such Person’s own gross negligence or willful misconduct, as
determined in the final judgment of a court of competent jurisdiction, in
connection with its duties expressly set forth herein) or (b) responsible
in any manner to any of the Lenders or any participant for any recitals,
statements, representations or warranties made by any of the Borrower, any
Guarantor, any other Loan Party or any officer thereof contained in this
Agreement or any other Loan Document or in any certificate, report, statement
or other document referred to or provided for in, or received by such Agent under
or in connection with, this Agreement or any other Loan Document or for the
value, validity, effectiveness, genuineness, enforceability or sufficiency of
this Agreement or any other Loan Document, or for any failure of the Borrower,
any Guarantor or any other Loan Party to perform its obligations hereunder or
thereunder.  No Agent shall be under any
obligation to any Lender to ascertain or to inquire as to the observance or performance
of any of the agreements contained in, or conditions of, this Agreement or any
other Loan Document, or to inspect the properties, books or records of any Loan
Party or any Affiliate thereof.


 


12.4.                        Reliance
by Agents.  The Administrative Agent
shall be entitled to rely, and shall be fully protected in relying, upon any
writing, resolution, notice, consent, certificate, affidavit, letter, telecopy,
telex or teletype message, statement, order or other document or instruction
believed by it to be genuine and correct and to have been signed, sent or made
by the proper Person or Persons and upon advice and statements of legal counsel
(including counsel to the Borrower), independent accountants and other experts
selected by the Administrative Agent. 
The Administrative Agent may deem and treat the Lender specified in the
Register with respect to any amount owing hereunder as the owner thereof for all
purposes unless a written notice of assignment, negotiation or transfer thereof
shall have been filed with the Administrative Agent.  The Administrative Agent shall be fully
justified in failing or refusing to take any action under this Agreement or any
other Loan Document unless it shall first receive such advice or concurrence of
the Required Lenders or Required Holders holding a majority of the Required
Debt (as applicable) as it deems appropriate or it shall first be indemnified
to its satisfaction by the Lenders against any and all liability and expense
that may be incurred by it by reason of taking or continuing to take any such
action.  The Administrative Agent shall
in all cases be fully protected in acting, or in refraining from acting, under
this Agreement and the other Loan Documents in accordance with a request of the
Required Lenders or Required Holders holding a majority of the Required Debt
(as applicable), and such request and any action taken or failure to act
pursuant thereto shall be binding upon all the Lenders and all future holders
of the Loans; provided that the Administrative Agent shall not be
required to take any action that, in its opinion or 


 


112

















 


in the opinion
of its counsel, may expose it to liability or that is contrary to any Loan
Document or applicable law.  For purposes
of determining compliance with the conditions specified in Sections 6
and 7 on the Original Closing Date, each Lender that signed the Original
Senior Unsecured Loan Agreement shall be deemed to have consented to, approved
or accepted or to be satisfied with, each document or other matter required
thereunder to be consented to or approved by or acceptable or satisfactory to a
Lender unless the Administrative Agent shall have received notice from such
Lender prior to the Original Closing Date specifying its objection thereto.


 


12.5.                        Notice
of Default.  The Administrative Agent
shall not be deemed to have knowledge or notice of the occurrence of any
Default or Event of Default hereunder unless the Administrative Agent has
received written notice from a Lender or the Borrower referring to this
Agreement, describing such Default or Event of Default and stating that such
notice is a “notice of default.”  In the
event that the Administrative Agent receives such a notice, it shall give
notice thereof to the Lenders.  The
Administrative Agent shall take such action with respect to such Default or
Event of Default as shall be reasonably directed by the Required Lenders or Required
Holders holding a majority of the Required Debt (as applicable), provided
that unless and until the Administrative Agent shall have received such
directions, the Administrative Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to such Default
or Event of Default as it shall deem advisable in the best interests of the
Lenders except to the extent that this Agreement requires that such action be
taken only with the approval of the Required Lenders or Required Holders
holding a majority of the Required Debt (as applicable) or each of the Lenders,
as applicable).


 


12.6.                        Non-Reliance
on Administrative Agent and Other Lenders. 
Each Lender expressly acknowledges that neither the Administrative Agent
nor any of its respective officers, directors, employees, agents,
attorneys-in-fact or Affiliates has made any representations or warranties to
it and that no act by the Administrative Agent hereinafter taken, including any
review of the affairs of the Borrower, any Guarantor or any other Loan Party,
shall be deemed to constitute any representation or warranty by the
Administrative Agent to any Lender.  Each
Lender represents to the Administrative Agent that it has, independently and
without reliance upon the Administrative Agent or any other Lender, and based
on such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of the Borrower, Guarantor
and other Loan Party and made its own decision to make its Loans hereunder and
enter into this Agreement.  Each Lender
also represents that it will, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Loan Documents, and to make such investigation as
it deems necessary to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of the Borrower, any
Guarantor and any other Loan Party. 
Except for notices, reports and other documents expressly required to be
furnished to the Lenders by the Administrative Agent hereunder, the Administrative
Agent shall not have any duty or responsibility to provide any Lender with any
credit or other information concerning the business, assets, operations,
properties, financial condition, prospects or creditworthiness of the Borrower,
any Guarantor or any other Loan Party that may come into the possession 


 


113

















 


of the
Administrative Agent any of their respective officers, directors, employees,
agents, attorneys-in-fact or Affiliates.


 


12.7.                        Indemnification.  The Lenders agree to indemnify each Agent in
its capacity as such (to the extent not reimbursed by the Loan Parties and
without limiting the obligation of the Loan Parties to do so), ratably
according to their respective portions of the Total Credit Exposure in effect
on the date on which indemnification is sought (or, if indemnification is
sought after the date upon which the Commitments shall have terminated and the
Loans shall have been paid in full, ratably in accordance with their respective
portions of the Total Credit Exposure in effect immediately prior to such
date), from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind whatsoever that may at any time (including at any time following the
payment of the Loans) be imposed on, incurred by or asserted against any Agent
in any way relating to or arising out of the Commitments, this Agreement, any
of the other Loan Documents or any documents contemplated by or referred to
herein or therein or the transactions contemplated hereby or thereby or any
action taken or omitted by the Administrative Agent under or in connection with
any of the foregoing, provided that no Lender shall be liable to an
Agent for the payment of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from such Agent’s, gross negligence or willful misconduct as
determined by a final judgment of a court of competent jurisdiction; provided,
further, that no action taken by the Administrative Agent in accordance
with the directions of the Required Lenders or Required Holders holding a
majority of the Required Debt (as applicable) (or such other number or
percentage of the Lenders or Required Holders as shall be required by the Loan
Documents) shall be deemed to constitute gross negligence or willful misconduct
for purposes of this Section 12.7. 
In the case of any investigation, litigation or proceeding giving rise
to any liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind whatsoever that
may at any time occur (including at any time following the payment of the
Loans), this Section 12.7 applies whether any such investigation,
litigation or proceeding is brought by any Lender or any other Person.  Without limitation of the foregoing, each
Lender shall reimburse each Agent upon demand for its ratable share of any
costs or out-of-pocket expenses (including attorneys’ fees) incurred by such
Agent in connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice rendered in respect of rights or
responsibilities under, this Agreement, any other Loan Document, or any
document contemplated by or referred to herein, to the extent that such Agent
is not reimbursed for such expenses by or on behalf of the Borrower, provided
that such reimbursement by the Lenders shall not affect the Borrower’s
continuing reimbursement obligations with respect thereto.  If any indemnity furnished to any Agent for
any purpose shall, in the opinion of such Agent, be insufficient or become
impaired, such Agent may call for additional indemnity and cease, or not commence,
to do the acts indemnified against until such additional indemnity is furnished;
provided, in no event shall this sentence require any Lender to
indemnify any Agent against any liability, obligation, loss, damage, penalty,
action, judgment, suit, cost, expense or disbursement in excess of such Lender’s
pro rata portion thereof; and provided,
further, this sentence shall not be deemed to require any Lender to indemnify
any Agent against any liability, obligation, loss, damage, penalty, action,
judgment, suit, cost, expense or disbursement resulting from such 


 


114

















 


Agent’s gross
negligence or willful misconduct.  The
agreements in this Section 12.7 shall survive the payment of the
Loans and all other amounts payable hereunder.


 


12.8.                        Agents
in Their Individual Capacities.  Each
Agent and its Affiliates may make loans to, accept deposits from and generally
engage in any kind of business with the Borrower, any Guarantor, and any other
Loan Party as though such Agent were not an Agent hereunder and under the other
Loan Documents.  With respect to the
Loans made by it, each Agent shall have the same rights and powers under this
Agreement and the other Loan Documents as any Lender and may exercise the same
as though it were not an Agent, and the terms “Lender” and “Lenders” shall
include each Agent in its individual capacity.


 


12.9.                        Successor
Agents.  The Administrative Agent may
at any time give notice of its resignation to the Lenders and the
Borrower.  Upon receipt of any such
notice of resignation, the Required Lenders shall have the right, subject to
the consent of the Borrower (not to be unreasonably withheld or delayed) so
long as no Default under Section 11.1 is continuing, to appoint a
successor, which shall be a bank with an office in the United States, or an
Affiliate of any such bank with an office in the United States.  If no such successor shall have been so appointed
by the Required Lenders and shall have accepted such appointment within 30 days
after the retiring Administrative Agent gives notice of its resignation, then
the retiring Administrative Agent may on behalf of the Lenders, appoint a
successor Administrative Agent meeting the qualifications set forth above.  Upon the acceptance of a successor’s
appointment as the Administrative Agent hereunder, and upon the transfer by the
retiring (or retired) Agent to the successor Agent of all sums, together with
all records and other documents necessary or appropriate in connection with the
performance of the duties of the successor Agent under the Loan Documents, such
successor shall succeed to and become vested with all of the rights, powers,
privileges and duties of the retiring (or retired) Agent, and the retiring
Agent shall be discharged from all of its duties and obligations hereunder or
under the other Loan Documents (if not already discharged therefrom as provided
above in this Section).  The fees payable
by the Borrower (following the effectiveness of such appointment) to such Agent
shall be the same as those payable to its predecessor unless otherwise agreed
between the Borrower and such successor. 
After the retiring Agent’s resignation hereunder and under the other
Loan Documents, the provisions of this Section 12 (including 12.7)
and Section 13.5 shall continue in effect for the benefit of such
retiring Administrative Agent, its sub-agents and their respective Related
Parties in respect of any actions taken or omitted to be taken by any of them
while the retiring Administrative Agent was acting as an Administrative Agent.


 


12.10.                  Withholding
Tax.  To the extent required by any
applicable law, the Administrative Agent may withhold from any payment to any
Lender an amount equivalent to any applicable withholding tax.  If the Internal Revenue Service or any
authority of the United States or other jurisdiction asserts a claim that the
Administrative Agent did not properly withhold tax from amounts paid to or for
the account of any Lender for any reason (including, without limitation,
because the appropriate form was not delivered, was not properly executed, or because
such Lender failed to notify the Administrative Agent of a change in
circumstances that rendered the exemption from, or reduction of, withholding
tax ineffective), such Lender shall indemnify the Administrative Agent (to the
extent that the Administrative Agent has not already been reimbursed by the Borrower
and without limiting the obligation of the Borrower to do so) fully for all 


 


115

















 


amounts paid,
directly or indirectly, by the Administrative Agent as tax or otherwise,
including penalties and interest, together with all expenses incurred,
including legal expenses, allocated staff costs and any out of pocket expenses.


 


12.11.                  [Reserved].


 


12.12.                  Agents under
Guarantee.  Each Guaranteed Party
hereby further authorizes the Administrative Agent, on behalf of and for the
benefit of the Guaranteed Parties, to be the agent for and representative of
the Guaranteed Parties with respect to the Guarantees.  Subject to Section 13.1, without
further written consent or authorization from any Guaranteed Party, the
Administrative Agent may execute any documents or instruments necessary to in
connection with a sale or disposition of assets permitted by this Agreement,
release any Guarantor from the Guarantee, or with respect to which Required
Lenders (or such other Lenders as may be required to give such consent under Section 13.1)
have otherwise consented.


 


12.13.                  Right to
Enforce Guarantee.  Anything
contained in any of the Loan Documents to the contrary notwithstanding, the Borrower,
the Agents and each Guaranteed Party hereby agree that no Guaranteed Party
shall have any right individually to enforce the Guarantee, it being understood
and agreed that all powers, rights and remedies hereunder may be exercised
solely by the Administrative Agent, on behalf of the Guaranteed Parties in
accordance with the terms hereof and all powers, rights and remedies under the
Guarantee may be exercised solely by the Administrative Agent, on behalf of the
Guaranteed Parties.


 


SECTION 13.                                             Miscellaneous


 


13.1.                        Amendments,
Waivers and Releases.


 


(a)                                  Neither
this Agreement nor any other Loan Document, nor any terms hereof or thereof,
may be amended, supplemented or modified except in accordance with the
provisions of this Section 13.1. 
The Required Holders holding a majority of the Required Debt may, or,
with the written consent of the Required Holders holding a majority of the
Required Debt, the Administrative Agent may, from time to time, (a) enter
into with the relevant Loan Party or Loan Parties written amendments,
supplements or modifications hereto and to the other Loan Documents for the
purpose of adding any provisions to this Agreement or the other Loan Documents
or changing in any manner the rights of the Lenders or of the Loan Parties
hereunder or thereunder, (b) waive in writing, on such terms and
conditions as the Required Holders holding a majority of the Required Debt or
the Administrative Agent, as the case may be, may specify in such instrument,
any of the requirements of this Agreement or the other Loan Documents or any
Default or Event of Default and its consequences or (c) consent to
amendments, supplements or modifications to the form of the Senior Refinancing
Indenture; provided, however, that each such waiver and each such
amendment, supplement or modification shall be effective only in the specific
instance and for the specific purpose for which given and provided, further,
that no such waiver and no such amendment, supplement or modification shall (i) forgive
or reduce any portion of any Loan or extend the final scheduled maturity date
of any Loan or reduce the stated rate (it being understood that any change to
the definition of Consolidated Leverage Ratio or Consolidated Secured Debt
Ratio or Fixed Charge Coverage Ratio or in the component definitions 


 


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thereof shall not constitute a reduction in
the rate and only the consent of the Required Holders holding a majority of the
Required Debt shall be necessary to waive any obligation of the Borrower to pay
interest at the “default rate” or amend Section 2.8(c)), or forgive
any portion, or extend the date for the payment, of any interest or fee payable
hereunder (other than as a result of waiving the applicability of any
post-default increase in interest rates), or extend the final expiration date
of any Lender’s Commitment or increase the aggregate amount of the Commitments
of any Lender, or amend or modify any provisions of Section 5.3(a) (with
respect to the ratable allocation of any payments only) and 13.8(a) and
13.20, or make any Loan, interest, Fee or other amount payable in any
currency other than expressly provided herein, in each case without the written
consent of each Lender directly and adversely affected thereby (or, in the case
of any Fees, the written consent of the Administrative Agent), or (ii) amend,
modify or waive any provision of this Section 13.1 or reduce the
percentages specified in the definitions of the terms “Required Holders,”
consent to the assignment or transfer by the Borrower of its rights and
obligations under any Loan Document to which it is a party (except as permitted
pursuant to Section 10.3) or alter the order of application set
forth Section 11.14, in each case without the written consent of
each Lender directly and adversely affected thereby, or (iii) amend,
modify or waive any provision of Section 12 without the written consent of
the then-current Administrative Agent in a manner that directly and adversely
affects such Person, (iv) release all or substantially all of the
Guarantors under the Guarantees (except as expressly permitted by the
Guarantees or this Agreement) except with the prior written consent of each
Lender or (v) amend, modify or waive any provision of Section 2.14
without the written consent of each Lender directly and adversely affected
thereby or (vi) amend or modify any provision of the Senior Refinancing
Indenture or the Senior Take-out Notes Indenture (as the case may be) that
requires (or would, if any Senior Notes were outstanding, require) the approval
of all holders of Senior Notes and/or Senior Take-out Notes (as the case may
be), without the written consent of each Lender and holder directly and
adversely affected thereby.  Any such
waiver and any such amendment, supplement or modification shall apply equally
to each of the affected Lenders and shall be binding upon the Borrower, such
Lenders, the Administrative Agent and all future holders of the affected
Loans.  In the case of any waiver, the
Borrower, the Lenders and the Administrative Agent shall be restored to their
former positions and rights hereunder and under the other Loan Documents, and
any Default or Event of Default waived shall be deemed to be cured and not
continuing, it being understood that no such waiver shall extend to any
subsequent or other Default or Event of Default or impair any right consequent
thereon.  In connection with the
foregoing provisions, the Administrative Agent may, but shall have no obligations
to, with the concurrence of any Lender, execute amendments, modifications,
waivers or consents on behalf of such Lender.


 


(b)                                 Notwithstanding
the foregoing, without notice to or the consent of any Lenders and without any
further action necessary by the parties hereto, effective as of the Initial
Loan Maturity Date, in the event of any inconsistency between the terms
contained in Sections 8, 9 and 11 of this Agreement and
the corresponding terms contained in the Senior Refinancing Indenture, such
provisions of this Agreement shall be replaced with corresponding provisions of
the Senior Refinancing Indenture, and, to the extent necessary to give effect
to the foregoing, each defined term used in the sections of the Senior
Refinancing Indenture or the Senior Take-out Notes Indenture (as the case may
be) shall have the meaning set forth in the Senior Refinancing Indenture or the
Senior Take-out Notes Indenture (as the case may be), subject to the terms of Section 1.2(h),
as applicable.  The applicable provisions
of the Senior Refinancing Indenture 


 


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or the Senior Take-out Notes Indenture as
described in Exhibit B-1 or Exhibit B-2, respectively,
to this Agreement shall be deemed incorporated and set forth in this Agreement
to the extent necessary to give effect to the foregoing.  In furtherance of the foregoing, the
Administrative Agent will (and the Lenders hereby authorize and direct the
Administrative Agent to), at the request of the Borrower, enter into such
technical amendments and other modifications to this Agreement as are reasonably
necessary to effect the foregoing.


 


(c)                                  Notwithstanding
anything to the contrary herein, no Defaulting Lender shall have any right to
approve or disapprove any amendment, waiver or consent hereunder, except that
the Commitment of such Lender may not be increased or extended without the
consent of such Lender (it being understood that any Commitments or Loans held
or deemed held by any Defaulting Lender shall be excluded for a vote of the
Lenders hereunder requiring any consent of the Lenders).


 


(d)                                 The
Lenders hereby irrevocably agree that the Guarantors shall be released from the
Guarantees and no further action by such Guarantor, the Borrower or the
Administrative Agent is required for the release of such Guarantor’s Guarantee,
upon: (1)(A)  any sale, exchange or transfer (by merger or otherwise) of
the Capital Stock of such Guarantor (including any sale, exchange or transfer),
after which the applicable Guarantor is no longer a Restricted Subsidiary or
all or substantially all the assets of such Guarantor which sale, exchange or
transfer is made in compliance with the applicable provisions of this
Agreement; (B) the release or discharge of the guarantee by such Guarantor
of the Senior Secured Credit Agreement or such other guarantee that resulted in
the creation of such Guarantee, except a discharge or release by or as a result
of payment under such guarantee; (C) the designation of any Restricted
Subsidiary that is a Guarantor as an Unrestricted Subsidiary in compliance with
Section 9.5 hereof and the definition of “Unrestricted Subsidiary”
hereunder; or (D) the Borrower’s obligations under this Agreement being
discharged in accordance with the terms of this Agreement; and (2) such
Guarantor delivering to the Administrative Agent an Officer’s Certificate and
an Opinion of Counsel, each stating that all conditions precedent provided for
in this Agreement relating to such transaction have been complied with.


 


(e)                                  The
Lenders hereby authorize the Administrative Agent to execute and deliver any
instruments, documents, and agreements necessary or desirable to evidence and
confirm the release of any Guarantor pursuant to the foregoing provisions of
this paragraph, all without the further consent or joinder of any Lender.


 


(f)                                    Notwithstanding
anything herein to the contrary, (i) if any amendment, waiver or other
modification would by its terms disproportionately affect the holders of any
one or more classes of Required Debt, such amendment, waiver or other
modification shall also require the consent of the holders of at least a
majority in aggregate principal amount of the then outstanding amount of such
class or classes of Required Debt, voting as a single class and (ii) if
any amendment, waiver or other modification would only affect the holders of
any one class of Required Debt, consent of the respective holders, if
applicable, holding at least a majority in aggregate principal amount of the
then outstanding amount of such class of Required Debt, if any are outstanding,
and not the consent of the Required Holders of a majority of the Required Debt,
as the case may be, acting as a single class, shall be required.


 


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13.2.                        Notices.  Unless otherwise expressly provided herein,
all notices and other communications provided for hereunder or under any other
Loan Document shall be in writing (including by facsimile transmission).  All such written notices shall be mailed, faxed
or delivered to the applicable address, facsimile number or electronic mail
address, and all notices and other communications expressly permitted hereunder
to be given by telephone shall be made to the applicable telephone number, as
follows:


 


(a)                                  if
to the Borrower or the Administrative Agent, to the address, facsimile number,
electronic mail address or telephone number specified for such Person on Schedule
13.2 or to such other address, facsimile number, electronic mail address or
telephone number as shall be designated by such party in a notice to the other
parties; and


 


(b)                                 if
to any Lender, to the address, facsimile number, electronic mail address or
telephone number specified in its Administrative Questionnaire or to such other
address, facsimile number, electronic mail address or telephone number as shall
be designated by such party in a notice to the Borrower and the Administrative
Agent.


 


All such
notices and other communications shall be deemed to be given or made upon the
earlier to occur of (i) actual receipt by the relevant party hereto and (ii) (A) if
delivered by hand or by courier, when signed for by or on behalf of the
relevant party hereto; (B) if delivered by mail, three (3) Business
Days after deposit in the mails, postage prepaid; (C) if delivered by
facsimile, when sent and receipt has been confirmed by telephone; and (D) if
delivered by electronic mail, when delivered; provided that notices and
other communications to the Administrative Agent or the Lenders pursuant to Sections
2.3, 2.6, 2.9 and 5.1 shall not be effective until
received.


 


13.3.                        No
Waiver; Cumulative Remedies.  No
failure to exercise and no delay in exercising, on the part of the Administrative
Agent or any Lender, any right, remedy, power or privilege hereunder or under
the other Loan Documents shall operate as a waiver thereof, nor shall any
single or partial exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other
right, remedy, power or privilege.  The
rights, remedies, powers and privileges herein provided are cumulative and not
exclusive of any rights, remedies, powers and privileges provided by law.


 


13.4.                        Survival
of Representations and Warranties. 
All representations and warranties made hereunder, in the other Loan
Documents and in any document, certificate or statement delivered pursuant
hereto or in connection herewith shall survive the execution and delivery of
this Agreement and the making of the Loans hereunder.


 


13.5.                        Payment
of Expenses; Indemnification.  The
Borrower agrees (a) to pay or reimburse the Agents for all their
reasonable out-of-pocket costs and expenses incurred in connection with the
development, preparation and execution and delivery of, and any amendment,
supplement or modification to, this Agreement and the other Loan Documents and
any other documents prepared in connection herewith or therewith, and the
consummation and administration of the transactions contemplated hereby and
thereby, including the reasonable fees, disbursements and other charges of
Cahill Gordon & Reindel LLP and one counsel
in each relevant local jurisdiction, (b) to pay or reimburse each Agent
for all its reasonable out-of-pocket costs 


 


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and expenses
incurred in connection with the enforcement or preservation of any rights under
this Agreement, the other Loan Documents and any other documents, including the
reasonable fees, disbursements and other charges of Cahill Gordon &
Reindel LLP, as counsel to the Agents, or such
other counsel retained with the Borrower’s consent (such consent not to be unreasonably
withheld), (c) to pay, indemnify, and hold harmless each Lender and Agent
from, any and all recording and filing fees and (d) to pay, indemnify, and
hold harmless each Lender and Agent and their respective Affiliates, directors,
officers, employees, trustees, investment advisors and agents from and against
any and all other liabilities, obligations, losses, damages, penalties, claims,
demands, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever, including reasonable and documented fees,
disbursements and other charges of one primary counsel and one local counsel in
each relevant jurisdiction to such indemnified Persons (unless there is an
actual or perceived conflict of interest or the availability of different
claims or defenses in which case each such Person may retain its own counsel),
related to the Transaction (including, without limitation, the Merger) or, with
respect to the execution, delivery, enforcement, performance and administration
of this Agreement, the other Loan Documents and any other documents, including,
without limitation, any of the foregoing relating to the violation of, noncompliance
with or liability under, any Environmental Law (other than by such indemnified
person or any of its Affiliates, officers, directors, employees or agents) or
to any actual or alleged presence, release or threatened release of Hazardous
Materials involving or attributable to the operations of the Borrower, any of
its Subsidiaries or any of the Real Estate (all the foregoing in this clause
(d), collectively, the “indemnified liabilities”),
provided that the Borrower shall have no obligation hereunder to any
Agent or any Lender or any of their respective Affiliates, officers, directors,
employees or agents, with respect to indemnified liabilities to the extent it
has been determined by a final non-appealable judgment of a court of competent
jurisdiction to have resulted from (i) the gross negligence, bad faith or
willful misconduct of the party to be indemnified or any of its Affiliates,
officers, directors, employees or agents, or (ii) any material breach of
any Loan Document by the party to be indemnified.  No Person entitled to indemnification under clause
(d) of this Section 13.5 shall be liable for any damages
arising from the use by others of any information or other materials obtained
through IntraLinks or other similar information transmission systems in
connection with this Agreement, nor shall any such Person have any liability
for any special, punitive, indirect or consequential damages relating to this
Agreement or any other Loan Document or arising out of its activities in
connection herewith or therewith (whether before or after the Original Closing
Date).  In the case of an investigation,
litigation or other proceeding to which the indemnity in this Section 13.5
applies, such indemnity shall be effective whether or not such investigation, litigation
or proceeding is brought by any Loan Party, its directors, stockholders or
creditors or any other Person, whether or not any Person entitled to
indemnification under clause (d) of this Section 13.5
is otherwise a party thereto.  All
amounts payable under this Section 13.5 shall be paid within ten
Business Days of receipt by the Borrower of an invoice relating thereto setting
forth such expense in reasonable retail. 
The agreements in this Section 13.5 shall survive repayment
of the Loans and all other amounts payable hereunder.


 


13.6.                        Successors
and Assigns; Participations and Assignments.


 


(a)                                  The
provisions of this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns permitted hereby,
except 


 


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that (i) except as expressly
permitted by Section 10.3, the Borrower may not assign or otherwise
transfer any of its rights or obligations hereunder without the prior written
consent of the Administrative Agent and each Lender (and any attempted
assignment or transfer by the Borrower without such consent shall be null and
void) and (ii) no Lender may assign or otherwise transfer its rights or
obligations hereunder except in accordance with this Section 13.6.  Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the parties
hereto, their respective successors and assigns permitted hereby, Participants
(to the extent provided in clause (c) of this Section 13.6)
and, to the extent expressly contemplated hereby, the Related Parties of each
of the Administrative Agent and the Lenders and each other Person entitled to
indemnification under Section 13.5) any legal or equitable right,
remedy or claim under or by reason of this Agreement.


 


(b)                                 (i) 
Subject to the conditions set forth in clause (b)(ii) below, any
Lender may at any time assign to one or more assignees all or a portion of its
rights and obligations under this Agreement (including all or a portion of its
Commitments and the Loans at the time owing to it) with the prior written
consent (such consent not be unreasonably withheld or delayed; it being
understood that, without limitation, the Borrower shall have the right to
withhold or delay its consent to any assignment if, in order for such
assignment to comply with applicable law, the Borrower would be required to
obtain the consent of, or make any filing or registration with, any
Governmental Authority) of:


 


(A)                              the
Borrower, provided that no consent of the Borrower shall be required for
an assignment to (1) a Lender, an Affiliate of a Lender, an Approved Fund,
(2) if an Event of Default under Section 11.1(I)(a), (b),
(g) or (h) has occurred and is continuing, any other
assignee or (3) to a Person not more than 14 days following the Original
Closing Date to the extent the Borrower has previously consented to an
allocation of Loans of Commitments in an amount greater than or equal to the
amount assigned to a Person in such time period; and


 


(B)                                the
Administrative Agent (which consent shall not be unreasonably withheld or
delayed), provided that no consent of the Administrative Agent shall be
required for an assignment of any Loan to a Lender, an Affiliate of a Lender or
an Approved Fund.


 


Notwithstanding the foregoing, no such
assignment shall be made to a natural person.


 


(ii)                                  Assignments shall be
subject to the following additional conditions:


 


(A)                              except
in the case of an assignment to a Lender, an Affiliate of a Lender or an
Approved Fund or an assignment of the entire remaining amount of the assigning
Lender’s Commitment or Loans of any Class, the amount of the Commitment or
Loans of the assigning Lender subject to each such assignment (determined as of
the date the Assignment and Acceptance with respect to such assignment is
delivered to the Administrative Agent) shall not be less than $1,000,000 in
excess thereof or, unless each of the Borrower and the Administrative Agent
otherwise consents (which consents shall not be unreasonably 


 


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withheld or
delayed), provided that no such consent of the Borrower shall be
required if an Event of Default under Section 11.1(I)(a), (b),
(g) or (h) has occurred and is continuing; provided
further that contemporaneous assignments to a single assignee made by
Affiliates of Lenders and related Approved Funds shall be aggregated for purposes
of meeting the minimum assignment amount requirements stated above;


 


(B)                                each
partial assignment shall be made as an assignment of a proportionate part of
all the assigning Lender’s rights and obligations under this Agreement, provided
that this clause shall not be construed to prohibit the assignment of a
proportionate part of all the assigning Lender’s rights and obligations in
respect of one Class of Commitments or Loans;


 


(C)                                The
parties to each assignment shall execute and deliver to the Administrative
Agent an Assignment and Acceptance via an electronic settlement system reasonably
acceptable to the Administrative Agent, together with a processing and recordation
fee in the amount of $3,500 via an electronic settlement system acceptable to
the Administrative Agent; provided that the Administrative Agent may, in
its sole discretion, elect to waive such processing and recordation fee in the
case of any assignment;


 


(D)                               the
assignee, if it shall not be a Lender, shall deliver to the Administrative
Agent an administrative questionnaire in a form approved by the Administrative
Agent (the “Administrative Questionnaire”) and
applicable tax form; and


 


(E)                                 prior
to the Interim Loan Conversion Date, no Committed Lender shall assign to
another Lender (other than another Committed Lender) any Loans without the
Borrower’s prior consent if, after giving effect to such assignment, the
Committed Lenders would hold, in the aggregate, less than 51% of the aggregate
principal amount of outstanding Loans.


 


(iii)                               Subject
to acceptance and recording thereof pursuant to clause (b)(iv) of
this Section 13.6, from and after the effective date specified in
each Assignment and Acceptance, the assignee thereunder shall be a party hereto
and, to the extent of the interest assigned by such Assignment and Acceptance,
have the rights and obligations of a Lender under this Agreement, and the
assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Acceptance, be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance covering all of the
assigning Lender’s rights and obligations under this Agreement, such Lender
shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 2.10, 2.11, 5.4 and 13.5).  Any assignment or transfer by a Lender of
rights or obligations under this Agreement that does not comply with this Section 13.6
shall be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with clause (c) of
this Section 13.6.


 


(iv)                              The
Administrative Agent, acting for this purpose as an agent of the Borrower,
shall maintain at the Administrative Agent’s Office a copy of each Assignment
and Acceptance delivered to it and a register for the recordation of the names
and addresses of the Lenders, the Commitments of, and principal amount of the
Loans owing to each Lender pursuant 


 


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to the terms hereof from time to time (the “Register”).  Further, each Register shall contain the name
and address of the Administrative Agent and the lending office through which
each such Person acts under this Agreement. 
The entries in the Register shall be conclusive, and the Borrower, the
Administrative Agent and the Lenders shall treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for
all purposes of this Agreement, notwithstanding notice to the contrary.  The Register shall be available for inspection
by the Borrower and any Lender, at any reasonable time and from time to time
upon reasonable prior notice.


 


(v)                                 Upon
its receipt of a duly completed Assignment and Acceptance executed by an
assigning Lender and an assignee, the assignee’s completed Administrative Questionnaire
and applicable tax forms (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in clause (b) of
this Section 13.6 and any written consent to such assignment
required by clause (b) of this Section 13.6, the
Administrative Agent shall promptly accept such Assignment and Acceptance and
record the information contained therein in the Register.


 


(c)                                  (i) 
Any Lender may, without the consent of the Borrower, or the Administrative
Agent, sell participations to one or more banks or other entities (each, a “Participant”) in all or a portion of such Lender’s rights
and obligations under this Agreement (including all or a portion of its
Commitments and the Loans owing to it), provided that (A) such
Lender’s obligations under this Agreement shall remain unchanged, (B) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, and (C) the Borrower, the Administrative
Agent and the other Lenders shall continue to deal solely and directly with
such Lender in connection with such Lender’s rights and obligations under this
Agreement.  Any agreement or instrument
pursuant to which a Lender sells such a participation shall provide that such
Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement or any
other Loan Document, provided that such agreement or instrument may
provide that such Lender will not, without the consent of the Participant,
agree to any amendment, modification or waiver described in clause (i) of
the proviso to Section 13.1. 
that affects such Participant.  Subject
to clause (c)(ii) of this Section 13.6, the Borrower
agrees that each Participant shall be entitled to the benefits of Sections
2.10, 2.11 and 5.4 to the same extent as if it were a Lender
and provided that such Participant agrees to be subject to the
requirements of those Sections as though it were a Lender and had acquired its
interest by assignment pursuant to clause (b) of this Section 13.6.  To the extent permitted by law, each
Participant also shall be entitled to the benefits of Section 13.8(b) as
though it were a Lender, provided such Participant agrees to be subject
to Section 13.8(a) as though it were a Lender.


 


(ii)                                  A
Participant shall not be entitled to receive any greater payment under Section 2.10,
2.11 or 5.4 than the applicable Lender would have been entitled
to receive with respect to the participation sold to such Participant, unless
the sale of the participation to such Participant is made with the Borrower’s
prior written consent (which consent shall not be unreasonably withheld).  Each Lender that sells a participation shall,
acting solely for this purpose as an agent of the Borrower, maintain a register
on which it enters the name and address of each participant and the principal
amounts of each participant’s interest in the Loans or other obligations 


 


123

















 


under this Agreement (the “Participant Register”).  The entries in the Participant Register shall
be conclusive, absent manifest error, and such Lender shall treat each Person
whose name is recorded in the Participant Register as the owner of such Loan or
other obligation hereunder as the owner thereof for all purposes of this
Agreement notwithstanding any notice to the contrary.  Any such Participant Register shall be
available for inspection by the Administrative Agent at any reasonable time and
from time to time upon reasonable prior notice.


 


(d)                                 Any
Lender may, without the consent of the Borrower or the Administrative Agent, at
any time pledge or assign a security interest in all or any portion of its
rights under this Agreement to secure obligations of such Lender, including any
pledge or assignment to secure obligations to a Federal Reserve Bank, and this Section 13.6
shall not apply to any such pledge or assignment of a security interest, provided
that no such pledge or assignment of a security interest shall release a Lender
from any of its obligations hereunder or substitute any such pledgee or assignee
for such Lender as a party hereto.  The
Borrower hereby agrees that, upon request of any Lender at any time and from
time to time after the Borrower has made its initial borrowing hereunder, the
Borrower shall provide to such Lender, at the Borrower’s own expense, a
promissory note, substantially in the form of Exhibit H-1 or H-2,
as the case may be, evidencing the Loans, owing to such Lender.


 


(e)                                  Subject
to Section 13.16, the Borrower authorizes each Lender to disclose
to any Participant, secured creditor of such Lender or assignee (each, a “Transferee”) and any prospective Transferee any and all
financial information in such Lender’s possession concerning the Borrower and
its Affiliates that has been delivered to such Lender by or on behalf of the Borrower
and its Affiliates pursuant to this Agreement or that has been delivered to
such Lender by or on behalf of the Borrower and its Affiliates in connection
with such Lender’s credit evaluation of the Borrower and its Affiliates prior
to becoming a party to this Agreement.


 


(f)                                    The
words “execution,” “signed,” “signature,” and words of like import in any
Assignment and Acceptance shall be deemed to include electronic signatures or
the keeping of records in electronic form, each of which shall be of the same
legal effect, validity or enforceability as a manually executed signature or
the use of a paper-based recordkeeping system, as the case may be, to the
extent and as provided for in any applicable law, including the Federal Electronic
Signatures in Global and National Commerce Act, the New York State Electronic
Signatures and Records Act, or any other similar state laws based on the
Uniform Electronic Transactions Act.


 


(g)                                 SPV
Lender.  Notwithstanding anything to the
contrary contained herein, any Lender (a “Granting Lender”)
may grant to a special purpose funding vehicle (a “SPV”),
identified as such in writing from time to time by the Granting Lender to the
Administrative Agent and the Borrower, the option to provide to the Borrower
all or any part of any Loan that such Granting Lender would otherwise be
obligated to make the Borrower pursuant to this Agreement; provided that
(i) nothing herein shall constitute a commitment by any SPV to make any
Loan and (ii) if an SPV elects not to exercise such option or otherwise
fails to provide all or any part of such Loan, the Granting Lender shall be
obligated to make such Loan pursuant to the terms hereof.  The making of a Loan by an SPV hereunder
shall utilize the Commitment of the Granting Lender to the same extent, and as
if, such Loan were made by such Granting Lender.  


 


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Each party hereto hereby agrees that no SPV
shall be liable for any indemnity or similar payment obligation under this
Agreement (all liability for which shall remain with the Granting Lender).  In furtherance of the foregoing, each party
hereto hereby agrees (which agreement shall survive the termination of this
Agreement) that, prior to the date that is one year and one day after the payment
in full of all outstanding commercial paper or other senior indebtedness of any
SPV, it shall not institute against, or join any other person in instituting
against, such SPV any bankruptcy, reorganization, arrangement, Insolvency or
Liquidation Proceedings under the laws of the United States or any State
thereof.  In addition, notwithstanding
anything to the contrary contained in this Section 13.6, any SPV
may (i) with notice to, but without the prior written consent of, the Borrower
and the Administrative Agent and without paying any processing fee therefor,
assign all or a portion of its interests in any Loans to the Granting Lender or
to any financial institutions (consented to by the Borrower and Administrative
Agent) providing liquidity and/or credit support to or for the account of such
SPV to support the funding or maintenance of Loans and (ii) disclose on a
confidential basis any non-public information relating to its Loans to any
rating agency, commercial paper dealer or provider of any surety, guarantee or
credit or liquidity enhancement to such SPV. 
This Section 13.6(g) may not be amended without the
written consent of the SPV. 
Notwithstanding anything to the contrary in this Agreement, (x) no
SPV shall be entitled to any greater rights under Sections 2.10, 2.11
and 5.4 than its Granting Lender would have been entitled to absent the
use of such SPV and (y) each SPV agrees to be subject to the requirements
of Sections 2.10, 2.11 and 5.4 as though it were a Lender
and has acquired its interest by assignment pursuant to clause (b) of
this Section 13.6.


 


13.7.                        Replacements
of Lenders Under Certain Circumstances.


 


(a)                                  The
Borrower shall be permitted to replace any Lender that (a) requests reimbursement
for amounts owing pursuant to Section 2.10, 2.11 or 5.4,
(b) is affected in the manner described in Section 2.10(a)(iii) and
as a result thereof any of the actions described in such Section is
required to be taken or (c) becomes a Defaulting Lender, with a
replacement bank or other financial institution, provided that (i) such
replacement does not conflict with any Requirement of Law, (ii) no Event
of Default under Section 11.1 or 11.5 shall have occurred
and be continuing at the time of such replacement, (iii) the Borrower
shall repay (or the replacement bank or institution shall purchase, at par) all
Loans and other amounts (other than any disputed amounts), pursuant to Section 2.10,
2.11 or 5.4, as the case may be) owing to such replaced Lender
prior to the date of replacement, (iv) the replacement bank or
institution, if not already a Lender, and the terms and conditions of such
replacement, shall be reasonably satisfactory to the Administrative Agent, (v) the
replaced Lender shall be obligated to make such replacement in accordance with
the provisions of Section 13.6 (provided that the Borrower
shall be obligated to pay the registration and processing fee referred to
therein) and (vi) any such replacement shall not be deemed to be a waiver
of any rights that the Borrower, the Administrative Agent or any other Lender
shall have against the replaced Lender.


 


(b)                                 If
any Lender (such Lender, a “Non-Consenting Lender”)
has failed to consent to a proposed amendment, waiver, discharge or termination
that pursuant to the terms of Section 13.1 requires the consent of
all of the Lenders affected and with respect to which the Required Lenders
shall have granted their consent, then provided no Event of Default then exists,
the Borrower shall have the right (unless such Non-Consenting Lender grants
such consent) to 


 


125

















 


replace such Non-Consenting Lender by
requiring such Non-Consenting Lender to assign its Loans, and its Commitments
hereunder to one or more assignees reasonably acceptable to the Administrative
Agent, provided that (a) all Obligations of the Borrower owing to
such Non-Consenting Lender being replaced shall be paid in full to such
Non-Consenting Lender concurrently with such assignment, and (b) the
replacement Lender shall purchase the foregoing by paying to such
Non-Consenting Lender a price equal to the principal amount thereof plus accrued
and unpaid interest thereon and (c) the Borrower shall pay to such
Non-Consenting Lender the amount, if any, owing to such Lender pursuant to Section 5.1(b).  In connection with any such assignment, the
Borrower, Administrative Agent, such Non-Consenting Lender and the replacement
Lender shall otherwise comply with Section 13.6.


 


13.8.                        Adjustments;
Set-off.


 


(a)                                  If
any Lender (a “benefited Lender”) shall at any
time receive any payment of all or part of its Loans, or interest thereon, or
receive any collateral in respect thereof (whether voluntarily or involuntarily,
by set-off, pursuant to events or proceedings of the nature referred to in Section 11.1(I)(g) or
(h), or otherwise), in a greater proportion than any such payment to or
collateral received by any other Lender, if any, in respect of such other
Lender’s Loans, or interest thereon, such benefited Lender shall purchase for
cash from the other Lenders a participating interest in such portion of each
such other Lender’s Loan, or shall provide such other Lenders with the benefits
of any such collateral, or the proceeds thereof, as shall be necessary to cause
such benefited Lender to share the excess payment or benefits of such
collateral or proceeds ratably with each of the Lenders; provided, however,
that if all or any portion of such excess payment or benefits is thereafter recovered
from such benefited Lender, such purchase shall be rescinded, and the purchase
price and benefits returned, to the extent of such recovery, but without
interest.


 


(b)                                 After
the occurrence and during the continuance of an Event of Default, in addition
to any rights and remedies of the Lenders provided by law, each Lender shall
have the right, without prior notice to the Borrower, any such notice being
expressly waived by the Borrower to the extent permitted by applicable law,
upon any amount becoming due and payable by the Borrower hereunder (whether at
the stated maturity, by acceleration or otherwise) to set-off and appropriate
and apply against such amount any and all deposits (general or special, time or
demand, provisional or final), in any currency, and any other credits,
indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by such Lender or any branch or agency thereof to or for the credit or
the account of the Borrower (excluding, for the avoidance of doubt, any
Settlement Assets, except to effect Settlement Payments such Lender is
obligated to make to a third party in respect of such Settlement Assets or as
otherwise agreed in writing between the Borrower and such Lender).  Each Lender agrees promptly to notify the
Borrower and the Administrative Agent after any such set-off and application
made by such Lender, provided that the failure to give such notice shall
not affect the validity of such set-off and application.


 


13.9.                        Counterparts.  This Agreement may be executed by one or more
of the parties to this Agreement on any number of separate counterparts
(including by facsimile or other electronic transmission), and all of said
counterparts taken together shall be deemed to constitute 


 


126

















 


one and the
same instrument.  A set of the copies of
this Agreement signed by all the parties shall be lodged with the Borrower and
the Administrative Agent.


 


13.10.                  Severability.  Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render unenforceable
such provision in any other jurisdiction.


 


13.11.                  Integration.  This Agreement and the other Loan Documents
represent the agreement of the Borrower, the Administrative Agent and the
Lenders with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Borrower, the Administrative
Agent nor any Lender relative to subject matter hereof not expressly set forth
or referred to herein or in the other Loan Documents.  For the avoidance of doubt, the Fee Letter
and the Engagement Letter remain in full force and effect in accordance with
their terms.


 


13.12.                  GOVERNING LAW.  THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.


 


13.13.                  Submission to
Jurisdiction; Waivers.  The Borrower
irrevocably and unconditionally:


 


(a)                                  submits
for itself and its property in any legal action or proceeding relating to this
Agreement and the other Loan Documents to which it is a party, or for
recognition and enforcement of any judgment in respect thereof, to the
non-exclusive general jurisdiction of the courts of the State of New York, the
courts of the United States of America for the Southern District of New York
and appellate courts from any thereof;


 


(b)                                 consents
that any such action or proceeding may be brought in such courts and waives any
objection that it may now or hereafter have to the venue of any such action or
proceeding in any such court or that such action or proceeding was brought in
an inconvenient court and agrees not to plead or claim the same;


 


(c)                                  agrees
that service of process in any such action or proceeding may be effected by
mailing a copy thereof by registered or certified mail (or any substantially
similar form of mail), postage prepaid, to such Person at its address set forth
on Schedule 13.2 at such other address of which the Administrative Agent
shall have been notified pursuant to Section 13.2;


 


(d)                                 agrees
that nothing herein shall affect the right to effect service of process in any
other manner permitted by law or shall limit the right to sue in any other
jurisdiction; and


 


127

















 


(e)                                  waives,
to the maximum extent not prohibited by law, any right it may have to claim or
recover in any legal action or proceeding referred to in this Section 13.13
any special, exemplary, punitive or consequential damages.


 


13.14.                  Acknowledgments.  The Borrower hereby acknowledges that:


 


(a)                                  it
has been advised by counsel in the negotiation, execution and delivery of this
Agreement and the other Loan Documents;


 


(b)                                 (i) the
Loans provided for hereunder and any related arranging or other services in
connection therewith (including in connection with any amendment, waiver or
other modification hereof or of any other Loan Document) are an arm’s-length
commercial transaction between the Borrower, on the one hand, and the
Administrative Agent, the Lenders and the other Agents on the other hand, and
the Borrower and the other Loan Parties are capable of evaluating and understanding
and understand and accept the terms, risks and conditions of the transactions
contemplated hereby and by the other Loan Documents (including any amendment,
waiver or other modification hereof or thereof); (ii) in connection with
the process leading to such transaction, each of the Administrative Agent and
the other Agents, is and has been acting solely as a principal and is not the financial
advisor, agent or fiduciary for the Borrower, any other Loan Parties or any of
their respective Affiliates, stockholders, creditors or employees or any other
Person; (iii) neither the Administrative Agent nor any other Agent has
assumed or will assume an advisory, agency or fiduciary responsibility in favor
of the Borrower or any other Loan Party with respect to any of the transactions
contemplated hereby or the process leading thereto, including with respect to
any amendment, waiver or other modification hereof or of any other Loan
Document (irrespective of whether the Administrative Agent or other Agent has
advised or is currently advising the Borrower, the other Loan Parties or their
respective Affiliates on other matters) and neither the Administrative Agent or
other Agent has any obligation to the Borrower, the other Loan Parties or their
respective Affiliates with respect to the transactions contemplated hereby
except those obligations expressly set forth herein and in the other Loan
Documents; (iv) the Administrative Agent, each other Agent and each
Affiliate of the foregoing  may be
engaged in a broad range of transactions that involve interests that differ
from those of the Borrower and its Affiliates, and neither the Administrative
Agent nor any other Agent has any obligation to disclose any of such interests
by virtue of any advisory, agency or fiduciary relationship; and (v) neither
the Administrative Agent nor any other Agent has provided and none will provide
any legal, accounting, regulatory or tax advice with respect to any of the
transactions contemplated hereby (including any amendment, waiver or other
modification hereof or of any other Loan Document) and the Borrower has
consulted its own legal, accounting, regulatory and tax advisors to the extent
it has deemed appropriate.  The Borrower
hereby waives and releases, to the fullest extent permitted by law, any claims
that it may have against the Administrative Agent or any other Agent with respect
to any breach or alleged breach of agency or fiduciary duty; and


 


128
















 


(c)                                  no
joint venture is created hereby or by the other Loan Documents or otherwise
exists by virtue of the transactions contemplated hereby among the Lenders or
among the Borrower, on the one hand, and any Lender, on the other hand.


 


13.15.                  WAIVERS OF JURY TRIAL.  THE BORROWER, EACH AGENT AND EACH LENDER
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION
OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY
COUNTERCLAIM THEREIN.


 


13.16.                  Confidentiality.  The Administrative Agent, each other Agent
and each Lender shall hold all non-public information furnished by or on behalf
of the Borrower or any of its Subsidiaries in connection with such Lender’s
evaluation of whether to become a Lender hereunder or obtained by such Lender,
the Administrative Agent or such other Agent pursuant to the requirements of
this Agreement (“Confidential Information”),
confidential in accordance with its customary procedure for handling
confidential information of this nature and (in the case of a Lender that is a
bank) in accordance with safe and sound banking practices and in any event may
make disclosure as required or requested by any governmental, regulatory or
self-regulatory agency or representative thereof or pursuant to legal process
or applicable law or regulation or (a) to such Lender’s or the
Administrative Agent’s or other Agent’s attorneys, professional advisors, independent
auditors, trustees or Affiliates, (b) to an investor or prospective
investor in a Securitization that agrees its access to information regarding
the Loan Parties, the Loans and the Loan Documents is solely for purposes of
evaluating an investment in a Securitization and who agrees to treat such
information as confidential, (c) to a trustee, collateral manager,
servicer, backup servicer, noteholder or secured party in connection with the
administration, servicing and reporting on the assets serving as collateral for
a securitization and who agrees to treat such information as confidential and (d) to
a nationally recognized ratings agency that requires access to information
regarding the Loan Parties, the Loans and Loan Documents in connection with ratings
issued with respect to a Securitization; provided that unless
specifically prohibited by applicable law or court order, each Lender, the
Administrative Agent and each other Agent shall use commercially reasonable
efforts to notify the Borrower of any request made to such Lender, the
Administrative Agent or such other Agent by any governmental, regulatory or
self regulatory agency or representative thereof (other than any such request
in connection with an examination of the financial condition of such Lender by
such agency) for disclosure of any such non-public information prior to
disclosure of such information, and provided  further that in no
event shall any Lender, the Administrative Agent or any other Agent be
obligated or required to return any materials furnished by the Borrower or any
Subsidiary.  Each Lender, the
Administrative Agent and each other Agent agrees that it will not provide to
prospective Transferees or to any pledgee referred to in Section 13.6
or to prospective direct or indirect contractual counterparties in swap
agreements to be entered into in connection with Loans made hereunder any of
the Confidential Information unless such Person is advised of and agrees to be
bound by the provisions of this Section 13.16 or confidentiality
provisions at least as restrictive as those set forth in this Section 13.16.


 


129

















 


13.17.                  Direct
Website Communications.


 


(a)                                  The
Borrower may, at its option, provide to the Administrative Agent any
information, documents and other materials that it is obligated to furnish to
the Administrative Agent pursuant to the Loan Documents, including, without
limitation, all notices, requests, financial statements, financial and other
reports, certificates and other information materials, but excluding any such
communication that (A) relates to a request for a new, or a conversion of
an existing, borrowing or other extension of credit (including any election of
an interest rate or interest period relating thereto), (B) relates to the
payment of any principal or other amount due under the Senior Secured Credit
Agreement prior to the scheduled date therefor, (C) provides notice of any
default or event of default under this Agreement or (D) is required to be
delivered to satisfy any condition precedent to the effectiveness of the Senior
Secured Credit Agreement and/or any borrowing or other extension of credit
thereunder (all such non-excluded communications being referred to herein
collectively as “Communications”), by transmitting
the Communications in an electronic/soft medium in a format reasonably
acceptable to the Administrative Agent to the Administrative Agent at an email
address provided by the Administrative Agent from time to time; provided
that: (i) upon written request by the Administrative Agent, the Borrower
shall deliver paper copies of such documents to the Administrative Agent for
further distribution to each Lender until a written request to cease delivering
paper copies is given by the Administrative Agent and (ii) the Borrower
shall notify (which may be by facsimile or electronic mail) the Administrative
Agent of the posting of any such documents and provide to the Administrative
Agent by electronic mail electronic versions (i.e., soft copies) of such
documents.  Each Lender shall be solely
responsible for timely accessing posted documents or requesting delivery of
paper copies of such documents from the Administrative Agent and maintaining
its copies of such documents.  Nothing in
this Section 13.17 shall prejudice the right of the Borrower, the
Administrative Agent, any other Agent or any Lender to give any notice or other
communication pursuant to any Loan Document in any other manner specified in
such Loan Document.


 


The Administrative Agent agrees that the
receipt of the Communications by the Administrative Agent at its e-mail address
set forth above shall constitute effective delivery of the Communications to
the Administrative Agent for purposes of the Loan Documents.  Each Lender agrees that notice to it (as
provided in the next sentence) specifying that the Communications have been
posted to the Platform shall constitute effective delivery of the
Communications to such Lender for purposes of the Loan Documents.  Each Lender agrees (A) to notify the Administrative
Agent in writing (including by electronic communication) from time to time of
such Lender’s e-mail address to which the foregoing notice may be sent by
electronic transmission and (B) that the foregoing notice may be sent to
such e-mail address.


 


(b)                                 The
Borrower further agrees that any Agent may make the Communications available to
the Lenders by posting the Communications on Intralinks or a substantially
similar electronic transmission system (the “Platform”),
so long as the access to such Platform (i) is limited to the Agents, the
Lenders and Transferees or Prospective Transferees and (ii) remains
subject to the confidentiality requirements set forth in Section 13.16.


 


(c)                                  THE
PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.”  THE AGENT PARTIES (AS DEFINED BELOW) DO NOT
WARRANT THE ACCURACY 


 


130

















 


OR COMPLETENESS OF THE BORROWER MATERIALS OR
THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR
OMISSIONS FROM THE BORROWER MATERIALS. 
NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY
WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT
OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY
ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM.  In no event shall the Administrative Agent or
any of its Related Parties (collectively, the “Agent
Parties” and each an “Agent Party”)
have any liability to the Borrower, any Lender, or any other Person for losses,
claims, damages, liabilities or expenses of any kind (whether in tort, contract
or otherwise) arising out of the Borrower’s or the Administrative Agent’s
transmission of Borrower Materials through the internet, except to the extent
the liability of any Agent Party resulted from such Agent Party’s (or any of
its Related Parties’ (other than any trustee or advisor)) gross negligence, bad
faith or willful misconduct or material breach of the Loan Documents.


 


(d)                                 The
Borrower and each Lender acknowledge that certain of the Lenders may be “public-side”
Lenders (Lenders that do not wish to receive material non-public information
with respect to the Borrower, its Subsidiaries or their securities) and, if
documents or notices required to be delivered pursuant to the Loan Documents or
otherwise are being distributed through the Platform, any document or notice
that the Borrower has indicated contains only publicly available information
with respect to the Borrower may be posted on that portion of the Platform designated
for such public-side Lenders.  If the
Borrower has not indicated whether a document or notice delivered contains only
publicly available information, the Administrative Agent shall post such
document or notice solely on that portion of the Platform designated for
Lenders who wish to receive material nonpublic information with respect to the
Borrower, its Subsidiaries and their securities.  Notwithstanding the foregoing, the Borrower
shall use commercially reasonable efforts to indicate whether any document or
notice contains only publicly available information.


 


13.18.                  USA PATRIOT
Act.  Each Lender hereby notifies the
Borrower that pursuant to the requirements of the USA Patriot Act (Title III of
Pub. L. 107-56 (signed into law October 26, 2001)) (the “Patriot Act”), it is required to obtain, verify and record
information that identifies each Loan Party, which information includes the
name and address of each Loan Party and other information that will allow such
Lender to identify each Loan Party in accordance with the Patriot Act.


 


13.19.                  Judgment
Currency.  If, for the purposes of
obtaining judgment in any court, it is necessary to convert a sum due hereunder
or any other Loan Document in one currency into another currency, the rate of
exchange used shall be that at which in accordance with normal banking
procedures the Administrative Agent could purchase the first currency with such
other currency on the Business Day preceding that on which final judgment is
given.  The obligation of the Borrower in
respect of any such sum due from it to the Administrative Agent or the Lenders
hereunder or under the other Loan Documents shall, notwithstanding any judgment
in a currency (the “Judgment Currency”)
other than that in which such sum is denominated in accordance with the
applicable provisions of this Agreement (the “Agreement
Currency”), be discharged 


 


131

















 


only to the
extent that on the Business Day following receipt by the Administrative Agent
of any sum adjudged to be so due in the Judgment Currency, the Administrative
Agent may in accordance with normal banking procedures purchase the Agreement
Currency with the Judgment Currency.  If
the amount of the Agreement Currency so purchased is less than the sum
originally due to the Administrative Agent from the Borrower in the Agreement
Currency, the Borrower agrees, as a separate obligation and notwithstanding any
such judgment, to indemnify the Administrative Agent or the Person to whom such
obligation was owing against such loss. 
If the amount of the Agreement Currency so purchased is greater than the
sum originally due to the Administrative Agent in such currency, the
Administrative Agent agrees to return the amount of any excess to the Borrower
(or to any other Person who may be entitled thereto under applicable law).


 


13.20.                  Payments Set
Aside.  To the extent that any
payment by or on behalf of the Borrower is made to any Agent or any Lender, or
any Agent or any Lender exercises its right of setoff, and such payment or the
proceeds of such setoff or any part thereof is subsequently invalidated,
declared to be fraudulent or preferential, set aside or required (including
pursuant to any settlement entered into by such Agent or such Lender in its
discretion) to be repaid to a trustee, receiver or any other party, in
connection with any proceeding or otherwise, then (a) to the extent of
such recovery, the obligation or part thereof originally intended to be
satisfied shall be revived and continued in full force and effect as if such
payment had not been made or such setoff had not occurred, and (b) each
Lender severally agrees to pay to the Administrative Agent upon demand its
applicable share of any amount so recovered from or repaid by any Agent, plus
interest thereon from the date of such demand to the date such payment is made
at a rate per annum equal to the applicable Overnight
Rate from time to time in effect.


 


13.21.                  Acknowledgements
Relating to the Closing Date.  Each
Loan Party hereby (i) expressly acknowledges the terms of this Agreement, (ii) ratifies
and affirms its obligations under the Loan Documents executed by such Loan
Party and (iii) acknowledges, renews and extends its continued liability
under all such Loan Documents and agrees such Loan Documents remain in full
force and effect, including with respect to the obligations of the Borrower as
modified by this Agreement.


 


132

















 


IN WITNESS WHEREOF, each of the parties
hereto has caused a counterpart of this Agreement to be duly executed and
delivered as of the date first above written.


 


	
   

  	
  FIRST DATA CORPORATION, as Borrower

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Stanley J. Andersen

  
	
   

  	
   

  	
  Name:

  	
  Stanley J. Andersen

  
	
   

  	
   

  	
  Title:

  	
  Vice President and Assistant Secretary

  
					



 


S-1

















 


	
   

  	
  CITIBANK, N.A., as

  Administrative Agent and a Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Caesar W. Wyszomirski

  
	
   

  	
   

  	
  Name:

  	
  Caesar W. Wyszomirski

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  CITIGROUP GLOBAL MARKETS INC., as Joint 

  Lead Arranger and Bookrunner

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Caesar W. Wyszomirski

  
	
   

  	
   

  	
  Name:

  	
  Caesar W. Wyszomirski

  
	
   

  	
   

  	
  Title:

  	
  Director

  
					



 


S-2

















 


	
   

  	
  CREDIT SUISSE, CAYMAN ISLANDS BRANCH, 

  as Syndication Agent and a Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Bill O’Daly

  
	
   

  	
   

  	
  Name:

  	
  Bill O’Daly

  
	
   

  	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ SoVonna Day-Goins

  
	
   

  	
   

  	
  Name:

  	
  SoVonna Day-Goins

  
	
   

  	
   

  	
  Title:

  	
  Managing Director

  
					



 


S-3

















 


	
   

  	
  DEUTSCHE BANK AG CAYMAN ISLANDS 

  BRANCH, as Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Patrick W. Dowling

  
	
   

  	
   

  	
  Name:

  	
  Patrick W. Dowling

  
	
   

  	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Stephen Cayer

  
	
   

  	
   

  	
  Name:

  	
  Stephen Cayer

  
	
   

  	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  DEUTSCHE BANK SECURITIES INC., as Joint 

  Lead Arranger and Bookrunner

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kris Mack

  
	
   

  	
   

  	
  Name:

  	
  Kris Mack

  
	
   

  	
   

  	
  Title:

  	
  Managing Director

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jake Foley

  
	
   

  	
   

  	
  Name:

  	
  Jake Foley

  
	
   

  	
   

  	
  Title:

  	
  Managing Director

  
					



 


S-4

















 


	
   

  	
  GOLDMAN SACHS CREDIT PARTNERS L.P., as 

  Joint Lead Arranger and Bookrunner and a Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Walt Jackson

  
	
   

  	
   

  	
  Name:

  	
  Walt Jackson

  
	
   

  	
   

  	
  Title:

  	
  Authorized Signatory

  
					



 


S-5

















 


	
   

  	
  HSBC BANK USA, NATIONAL ASSOCIATION, 

  as Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Paul Lopez

  
	
   

  	
   

  	
  Name:

  	
  Paul Lopez

  
	
   

  	
   

  	
  Title:

  	
  Senior Vice President

  
					



 


S-6

















 


	
   

  	
  LEHMAN COMMERCIAL PAPER INC., as Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Laurie Perper

  
	
   

  	
   

  	
  Name:

  	
  Laurie Perper

  
	
   

  	
   

  	
  Title:

  	
  Senior Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  LEHMAN BROTHERS INC., as Joint Lead Arranger
  

  and Joint Bookrunner

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Laurie Perper

  
	
   

  	
   

  	
  Name:

  	
  Laurie Perper

  
	
   

  	
   

  	
  Title:

  	
  Senior Vice President

  
					



 


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  MERRILL LYNCH CAPITAL CORPORATION, as 

  Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John C. Rowland

  
	
   

  	
   

  	
  Name:

  	
  John C. Rowland

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  MERRILL LYNCH, PIERCE, FENNER &
  SMITH 

  INCORPORATED, as Joint Lead Arranger and 

  Bookrunner

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John C. Rowland

  
	
   

  	
   

  	
  Name:

  	
  John C. Rowland

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
					



 


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